I   '!!! 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


^^g. 


EDWARD  VERXOX  WHITON. 


THE 
STORY  OF  A  GREAT  COURT 


BEING  A  SKETCH  HISTORY  OF  THE  SUPREME  COURT 

OF  WISCONSIN,    ITS  JUDGES  AND   THEIR    TIMES 

FROM   THE   ADMISSION    OF   THE    STATE   TO 

THE  DEATH    OF  CHIEF  JUSTICE  RYAN 


JOHN  BRADLEY  WINSLOW,  LL.D.CU.  W.) 


CHICAGO 

T.  H.  FLOOD  &  COMPANY 

1912 


Copyright  1912 

BY 

T.  H.  FLOOD  &  COMPANY 


STATE  JOURNAL  PRINTING  COMPANY, 
Printers  and  Stereotyperk 

MADISON,  wis. 


*o 


THIS  BOOK  IS  AFFECTIONATELY  INSCRIBED 


THE  AUTHOR  TO  THE  READER 


Any  one  who  offers  another  book  to  a  profession  already 
burdened  with  books  surely  ought  to  give  some  reason,  or 
at  least  some  plausible  excuse,  for  his  act.  My  reason  or 
excuse,  whichever  it  may  be,  is  this:  In  talking  with  the 
younger  members  of  the  bar  of  the  state  I  have  often  been 
forcibly  struck  with  the  fact  that  many  of  them  had  little 
or  no  idea  of  the  remarkable  men  who  sat  upon  the  supreme 
bench  during  the  early  years  of  the  state,  nor  of  the  heated 
controversies,  political  as  well  as  legal,  in  which  the  court 
and  its  judges  were  in  one  way  or  another  involved  during 
those  years.  With  the  idea  of  doing  something  to  dispel 
this  ignorance,  I  began  to  prepare  a  paper  covering  the 
early  history  of  the  court,  intending  to  publish  it  in  pam- 
phlet form.  I  had  not  gone  far,  however,  when  I  found  that 
the  subject  could  not  be  treated  in  any  mere  monograph, 
and  as  I  proceeded  I  discovered  many  matters  of  surpass- 
ing interest  which  were  entirely  new  to  me  and  thus  the 
projected  pamphlet  grew  into  a  book.  I  cannot  but  feel 
that  the  book  will  interest  not  only  lawyers  but  many  lay- 
men. If  this  be  not  sufficient  reason  for  the  existence  of 
this  book  then  there  is  none.  It  will  be  noticed  that  I  have 
called  it  "The  Story  of  a  Great  Court,"  and  possibly  some 
may  think  that  it  is  scarcely  appropriate  for  one  who  is  now 


vi  The  Author  to  the  Reader 

a  member  of  that  same  court  to  apply  to  it  so  eulogistic  a 
title.  "Let  another  man  praise  thee  and  not  thine  own 
mouth ;  a  stranger  and  not  thine  own  lips."  I  fully  consid- 
ered this  question,  however,  before  adopting  the  title,  and 
made  up  my  mind  that  as  my  connection  with  the  court  did 
not  begin  until  May,  1891,  there  could  be  no  impropriety 
in  my  applying  the  term  "great"  to  the  court  of  which  I 
write,  namely,  the  court  whose  history  terminates  in  1880. 
Whether  the  same  adjective  may  properly  be  applied  to  the 
court  since  1880  will  be  a  matter  for  the  future  historian  to 
settle.  I  do  not  attempt  to  influence  his  decision. 
Madison,  Wisconsin,  November,  1911. 


TABLE  OF  CONTENTS. 


CHAPTER  I 


The  territorial  courts — The  growth  of  American  sentiment 
in  favor  of  an  elective  judiciary — The  constitutional 
conventions. 

CHAPTER  II 

The  temporary  Supreme  Court  established  by  the  Constitu- 
tion consisting  of  the  Circuit  Judges  sitting  in  bank — 
Biographical  sketches  of  the  judges  of  that  court. 

CHAPTER  III 

The  work  of  the  first  Supreme  Court  with  brief  references 
to  the  most  important  decisions  rendered. 

CHAPTER  IV 

The  political  struggle  for  the  control  of  the  permanent 
Supreme  Court  in  the  fall  of  1852 — The  Democratic 
Convention — Biographical  sketch  of  Judge  Dunn — 
Speeches  at  the  Convention — Nomination  of  Charles 
H.  Larrabee  for  Chief  Justice  and  of  Abram  D.  Smith 
and  Samuel  Crawford  for  Associates — The  independ- 
ent convention — Nomination  of  Edward  V.  Whiton  for 
Chief  Justice  and  of  Marshall  M.  Strong  and  James  H. 
Knowlton  for  Associates — Election  of  Whiton,  Smith 
and  Crawford — Biographical  sketches  of  Smith  and 
Crawford. 


viii  Table  of  Contents 

CHAPTER  V 

Contemporaneous  comments  on  Madison,  the  Capitol  build- 
ing and  the  early  Supreme  Courts  extracted  from  the 
correspondence  of  Moses  B.  Butterfield,  a  Racine 
lawyer. 

CHAPTER  VI 

Personal  recollections  of  Chief  Justice  Whiton,  by  Henry 
M.  Lewis. 

CHAPTER  VII 

The  Booth  case  and  the  conflict  with  the  Federal  Courts 
over  the  constitutionality  of  the  fugitive  slave  law — 
The  minor  decisions  of  the  Court  during  its  first  two 
years. 

CHAPTER  VIII 

The  defeat  of  Crawford  by  Cole  in  1855  because  of  Judge 
Crawford's  attitude  in  the  Booth  case — Biographical 
sketch  of  Judge  Cole — The  question  as  to  the  time 
when  Judge  Cole's  term  commenced. 

CHAPTER  IX 

The  contested  election  for  Governor  in  1855 — The  case  of 
State  ex  rel.  Bashford  v.  Barstow — Biographical  sketch 
of  Wm.  R.  Smith — Rendition  of  judgment  for  Bash- 
ford — Resignation  of  Barstow. 

CHAPTER  X 

The  adoption  of  the  Code— The  election  in  April,  1857,  for 
Chief  Justice — Nomination  of  Whiton  by  call  and  of 
M.  M.  Cothren  by  a  Democratic  Convention — Bio- 
graphical sketch  of  Cothren — Re-election  of  Whiton. 


Table  of  Contents  ix 

CHAPTER  XI 

The  expiration  of  Judge  Smith's  term — Nomination  of 
Byron  Paine  by  the  Republicans,  and  of  William  Pitt 
Lynde  by  the  Democrats — The  campaign  conducted  en- 
tirely upon  the  State  rights  issue.  Triumph  of  Paine 
and  State  rights. 

CHAPTER  XII 

Death  of  Chief  Justice  Whiton— Appointment  of  Luther  S. 
Dixon  in  his  place — Biographical  sketch  of  Dixon — 
His  opinion  as  to  obeying  the  Federal  Supreme  Court 
in  the  Booth  case — Dissatisfaction  of  the  radical  Re- 
publicans— Nomination  of  A.  Scott  Sloan  by  Repub- 
licans— Independent  candidacy  of  Dixon — Bitterness 
of  the  campaign— The  Farm  Mortgage  question- 
Triumph  of  Judge  Dixon. 

CHAPTER  XIII 

Anecdotes  of  Chief  Justice  Dixon — Biographical  sketch  of 
Judge  Paine  and  Judge  Cole's  eulogy. 

CHAPTER  XIV 

The  Farm  Mortgage  question — Formation  of  the  Home 
League — Legislation  intended  to  defeat  the  farm  mort- 
gages —  Independent  candidacy  of  Cole  —  James  H. 
Knowlton  placed  in  the  field  by  the  farm  mortgagors — 
Election  of  Cole — Legislative  efforts  to  invalidate  the 
farm  mortgages  in  the  hands  of  innocent  purchasers 
set  aside  by  the  Court. 


x  Table  of  Contents 

CHAPTER  XV 

The  clash  with  President  Lincoln — Denial  by  the  Court  that 
the  President  could  lawfully  suspend  the  writ  of  habeas 
corpus — The  effect  of  this  decision  on  Federal  legisla- 
tion— The  validity  of  the  draft — Extra  judicial  opinion 
of  Justices  Dixon  and  Cole  as  to  the  validity  of  the  war 
bonds — Another  war  measure  held  unconstitutional. 

CHAPTER  XVI 

The  political  situation  in  the  fall  of  1862 — Discouragement 
in  the  North  over  the  slow  progress  of  the  war — Demo- 
cratic Convention  in  September — Issuance  of  the  "Ryan 
address" — Disgust  of  the  War  Democrats — Congres- 
sional elections  resulting  in  Democratic  victories — Call- 
ing of  Democratic  Convention  in  February,  1863 — De- 
cision in  the  Kemp  habeas  corpus  case — Nomination  by 
Democrats  of  M.  M.  Cothren  for  Chief  Justice — Reso- 
lutions adopted  by  the  Convention — Independent  candi- 
dacy of  Dixon — Opposition  of  the  farm  mortgagors  to 
Dixon — The  question  of  the  legality  of  the  soldier 
vote — Election  of  Dixon. 

CHAPTER  XVII 

The  early  railroad  tax  case,  in  which  no  opinion  was  written 
at  the  time — Reversal  of  the  decision  in  that  case  and 
subsequent  return  to  it — Discussion  as  to  the  grounds 
on  which  the  early  decision  rested — Subsequent  growth 
of  the  system  of  license  taxation. 

CHAPTER  XVIII 
Resignation  of  Judge  Paine  in  August,  1864,  and  his  entry 
into  the  military  service.     Probable  reason  for  that  ac- 


Table  of  Contents  xi 

tion — Appointment  of  Jason  Downer  in  his  place  and 
biographical  sketch  of  Downer. 

CHAPTER  XIX 

Miscellaneous  war  questions — The  enlistment  of  minors — 
The  legal  tender  decision — The  stamp  act — The  bounty 
tax — An  echo  of  the  draft  riots — The  decision  declar- 
ing that  negroes  were  granted  the  right  of  suffrage  by 
the  election  of  1849. 

CHAPTER  XX 

The  resignation  of  Chief  Justice  Dixon  in  March,  1867,  on 
account  of  his  meagre  salary — His  reappointment  by 
Governor  Fairchild — Judge  Downer's  resignation  in 
September,  1867,  and  Judge  Paine's  appointment — 
Nomination  by  Democratic  Convention  in  February, 
1868,  of  Charles  Dunn  for  Chief  Justice  and  E.  Holmes 
Ellis  for  Associate — Nomination  of  Dixon  and  Paine 
by  Republican  Convention  one  week  latter — Bitterness 
of  the  campaign — Attacks  on  Dunn  by  Republicans  and 
on  Dixon  by  Democrats — Activities  of  the  farm  mort- 
gagors against  Dixon — The  negro  suffrage  decision 
used  against  him — Election  of  Dixon  and  Paine. 

CHAPTER  XXI 

The  last  appearance  of  the  States  rights  hersey  in  the  Su- 
preme Court — The  decisions  in  the  Knorr  and  Tarble 
cases — Dissent  of  Judge  Paine  in  the  Knorr  case — His 
opinions  in  both  cases — Decision  of  the  Federal  Su- 
preme Court  in  the  Tarble  case. 


xii  Table  of  Contents 

CHAPTER  XXII 

Sudden  death  of  Judge  Paine  January  13,  1871 — The  out- 
burst of  public  grief — Appointment  of  William  Penn 
Lyon  in  his  place — Biographical  sketch  of  Judge  Lyon 
— His  legislative,  legal  and  military  career — His  elec- 
tion as  Circuit  Judge  while  still  in  the  service — The  in- 
crease in  the  business  of  the  Court. 

CHAPTER  XXIII 

The  judicial  election  of  1871 — Recommendation  of  Judge 
Lyon  by  Republican  legislative  caucus — Nomination  of 
David  J.  Pulling  by  calls  and  Democratic  legislative 
caucus — The  campaign — Election  of  Judge  Lyon. 

CHAPTER  XXIV 

Some  of  Chief  Justice  Dixon's  notable  opinions — The  Home- 
stead Exemption  case — The  question  of  how  far  the 
legislature  may  change  contract  remedies — The  ques- 
tion of  obedience  to  the  mandate  of  the  Federal  Su- 
preme Court  in  the  Booth  case — The  question  of  legis- 
lative power  to  expend  the  funds  of  cities — The  ques- 
tion of  proximate  cause  in  negligence  actions — The 
effect  of  the  Sunday  law — The  power  of  the  Court  to 
choose  its  own  bailiff — Judge  Dixon's  resignation  in 
June,  1874. 

CHAPTER  XXV 

The  appointment  of  Edward  George  Ryan  in  Dixon's  place 
— Biographical  sketch  of  Ryan — His  infirmity  of  tem- 
per, reverence  for  justice  and  high  code  of  professional 


Table  of  Contents  xiii 

morals — Personal  anecdotes — Early  poetical  efforts — 
His  essays — Address  to  the  law  class  of  1873 — The 
Hubbell  impeachment. 

CHAPTER  XXVI 

Notable  opinions  of  Judge  Ryan — The  great  railroad  cases 
brought  under  the  Potter  law — The  question  of  the 
original  jurisdiction  of  the  Supreme  Court — State  ex 
rel  Drake  v.  Doyle — The  Craker  case — Wight  v.  Rinds- 
kopf — Tribute  to  marriage — Senator  Vilas'  estimate  of 
his  opinions  as  literature. 

CHAPTER  XXVII 

Enlargement  of  the  Bench  by  constitutional  amendment — 
Nomination  of  Harlow  S.  Orton  and  David  Taylor  for 
the  new  places  by  legislative  caucuses — Their  election 
unopposed  in  April,  1878 — Biographical  sketches  of 
both  nominees. 

CHAPTER  XXVIII 

Judge  Cole's  last  contest  in  the  spring  of  1879 — Nomination 
of  Judge  Cothren  by  a  Democratic  legislative  caucus  in 
February,  1879  —  Judge  Cole's  nomination  by  non- 
partisan calls — Bitter  fight  made  on  Judge  Cole — His 
triumphant  re-election — End  of  the  legislative  caucus 
as  a  nominating  body. 

CHAPTER  XXIX 

Judge  Ryan's  ill  health  in  his  later  days — His  vacation 
granted  by  legislative  resolution — His  final  illness  and 
death  in  October,  1! 


xiv  Table  of  Contents 

CHAPTER  XXX 

The  changes  in  the  Bench  since  1880  and  the  growth  of  the 
non-partisan  idea  in  judicial  elections. 

CHAPTER  XXXI 

Recent  honors  to  Dixon  and  Ryan — Erection  of  monuments 
in  their  memory  by  public  subscriptions — The  proceed- 
ings and  addresses  at  the  dedication  of  the  monuments. 


The  Story  of  a  Great  Court 


CHAPTER  I. 

THE    TERRITORIAL    COURTS    AND    THE    CONSTITUTIONAL    CON- 
VENTIONS. 

The  commonwealth  of  Wisconsin,  as  a  separate  political 
entity,  came  into  being  by  virtue  of  an  act  of  Congress  ap- 
proved April  20th,  1836,  by  which  it  was  provided  that  all 
the  territory  now  embraced  within  the  states  of  Wisconsin, 
Iowa  and  Minnesota,  as  well  as  a  part  of  the  territory  now 
embraced  within  the  states  of  North  Dakota  and  South  Da- 
kota should,  after  the  third  day  of  July,  1836,  constitute  a 
separate  territory  under  the  name  of  Wisconsin.  Prior 
to  that  act  the  territory  comprising  the  present  state  had 
been  successively  a  part  of  the  Northwest  territory  under 
the  ordinance  of  1787  up  to  May  7,  1800,  a  part  of  In- 
diana territory  from  that  time  up  to  February  3,  1809, 
a  part  of  Illinois  territory  from  the  last  named  date  up 
to  April  18,  18 18,  and  a  part  of  Michigan  territory  after 
the  last  named  date.  Before  the  year  1823  there  were  no 
separate  courts  in  that  part  of  the  territory  now  comprised 
within  the  state,  except  county  courts  of  very  limited  civil 
and  criminal  jurisdiction  and  justices  courts;  all  important 
cases,  whether  civil  or  criminal  were  tried  by  the  territorial 
supreme  court  at  Detroit.  In  January  of  that  year,  however, 
a  law  was  passed  providing  for  the  appointment  of  an  addi- 
tional federal  judge  for  the  counties  of  Brown  and  Crawford 


2  The  Story  of  a  Great  Court 

(covering  the  whole  of  the  present  state)  and  the  county  of 
Michilimackinac,  which  law  also  provided  for  the  holding 
of  one  term  a  year  in  each  county.  James  D.  Doty  was  the 
first  judge  appointed  under  this  act  and  he  held  his  first  term 
at  Green  Bay  in  1824,  at  which  time  the  judicial  history  of 
Wisconsin  may  be  said  to  have  begun.  Judge  Doty  served 
until  May,  1832,  when  he  was  succeeded  by  David  Irvin,  who 
held  the  office  until  the  organization  of  the  territory  and  the 
creation  of  a  separate  territorial  Supreme  Court  by  the  act 
of  T836. 

Under  this  act  the  President  appointed  Charles  Dunn  as 
chief  justice  and  David  Irvin  and  William  C.  Frazer  as  as- 
sociate justices,  and  the  first  term  of  the  new  court  was  held 
at  Belmont,  Iowa  county,  in  December,  1836.  On  the  eighth 
day  of  November,  1838,  Andrew  G.  Miller  was  appointed 
associate  justice  in  place  of  Judge  Frazer,  then  recently 
deceased,  and  the  constitution  of  the  court  remained  un- 
changed from  this  time  until  the  organization  of  the  state  in 
1848. 

There  is  much  of  interest  which  might  well  be  written  con- 
cerning these  eaily  territorial  judges  and  the  courts  over 
which  they  presided,  but  as  this  period  is  not  included  within 
the  scope  of  the  present  volume  no  attempt  will  be  made  to 
treat  these  subjects  here.  They  will  be  found  very  interest- 
ingly treated  b\  the  late  Mr.  Justice  Pinney  in  the  preface 
to  volume  one  of  Pinney's  Wisconsin  Reports. 

The  act  of  Congress  which  enabled  the  people  of  the  terri- 
tory to  form  a  state  constitution  and  apply  for  admission  to 
the  Union  was  approved  August  6,  1846,  and  the  first  con- 
stitutional convention  met  October,  5th  and  adjourned  De- 
cember 1 6th  of  that  year.  The  constitution  framed  by  this 
convention  was  rejected  by  vote  of  the  people  in  the  fol- 
lowing spring  and  the  second   convention  met  December 


Territorial  Courts  and  Constitutional  Conventions       3 

15,  1847,  and  concluded  its  labors  on  February  1, 
1S48.  This  second  constitution  was  ratified  by  the  people 
March  13,  1848,  and  the  state  was  finally  admitted  by  act  of 
Congress  approved  May  29,  1848.  Both  constitutions  pro- 
vided for  the  election  of  all  judges  by  vote  of  the  people. 
This  provision  does  not  seem  in  any  respect  singular  to  those 
who  have  been  born  and  brought  up  under  the  elective  sys- 
tem, yet  the  election  of  judges  by  the  people  was  by  no  means 
a  matter  of  course  at  that  time ;  in  fact  it  was  a  radical  inno- 
vation on  long  established  methods,  a  pioneer  step  in  a  field 
of  experiment  which  was  viewed  with  apprehension  by  many 
whose  experience  and  wisdom  entitled  their  opinions  to  seri- 
ous consideration. 

From  the  earliest  times  in  American  history  all  judges  had 
been  appointed.  Such  was  and  still  is  the  English  method 
and  when  our  federal  constitution  and  the  early  state  consti- 
tutions were  adopted  that  method  was  generally  followed 
with  occasional  variations  giving  the  legislative  arm  of  the 
government  either  the  sole  power  of  appointment  or  some 
share  in  that  power.  In  a  pamphlet  by  D.  B.  Eaton  of  New 
York,  published  in  October,  1873,1  entitled  "Should  Judges 
be  Elected"'  it  is  said  of  the  appointive  method  that  "up  to 
1846  no  other  method  had  existed  for  the  selection  of  judges 
in  the  state  of  New  York,  in  any  other  state  of  the  Union 
or  in  any  enlightened  country  of  modern  times."  This  sweep- 
ing declaration  was  not  strictly  accurate  as  we  shall  pres- 
ently see ;  however,  the  exceptions  had  been  so  few  prior  to 
1846  that  no  serious  fault  can  be  found  with  the  substance  of 
the  statement. 

With  the  rapid  development  of  the  democratic  spirit  the 
sentiment  in  favor  of  electing  the  judiciary  had  been  grow- 

1  Law  Pamphlets,  Vol.  9,  Wis.  State  Library. 


4  The  Story  of  a  Great  Court 

ing  since  early  in  the  nineteenth  century.  This  sentiment 
was  based  on  the  idea  that  all  power  was  from  the  people 
and  that  as  both  executive  and  legislative  officers  were 
elected  by  the  people  consistency  demanded  that  the  judici- 
ary, which  under  our  system  constitutes  an  independent  and 
co-ordinate  branch  of  the  government,  should  also  be  elected. 
The  controversy  between  the  advocates  of  the  appointive 
system  on  the  one  side  and  the  elective  system  on  the  other 
has  been  vigorously  waged  and  is  yet  on,  but  no  discussion 
of  the  merits  of  this  question  will  be  attempted  in  this  vol- 
ume. Rightly  or  wrongly  the  sentiment  in  favor  of  the 
elective  system  developed  with  startling  rapidity  in  our 
American  commonwealths  during  the  nineteenth  century, 
and  in  1893  it  was  stated  by  David  Dudley  Field  2  that  in 
twenty  seven  of  the  forty  two  states  then  existing  the  judges 
of  the  highest  courts  were  elected  by  the  people,  in  eight  they 
were  appointed  by  the  governor  subject  to  confirmation  by 
the  senate  or  the  legislature,  and  in  seven  elected  by  the  leg- 
islature. I  have  made  no  examination  to  ascertain  the  exact 
situation  at  the  present  time,  but  it  is  entirely  safe  to  say 
that  the  present  percentage  in  favor  of  the  elective  system 
is  greater  than  it  was  in  1893. 

The  first  partial  trial  of  the  elective  system  seems  to  have 
been  made  in  Georgia  in  1812,  when  by  an  amendment  to  the 
constitution  the  judges  of  the  inferior  or  county  courts  were 
made  elective ;  this  was  followed  by  a  similar  provision  in 
the  first  constitution  of  Indiana  adopted  in  18 16,  but  in  both 
states  the  justices  of  the  Supreme  Court  remained  appointive. 
The  first  complete  victory  of  the  elective  idea,  however,  took 
place  when  Mississippi  adopted  a  new  constitution  providing 
for  the  election  of  all  judges  by  the  people.  This  was  in 
1832  but  it  was  soon  to  be  followed  by  other  triumphs.     In 


2  Albany  Law  Journal,  Sept.  9.  1893. 


Territorial  Courts  and  Constitutional  Conventions       5 

1835  the  first  constitution  of  Michigan  made  inferior  judges 
elective.  In  1846  constitutional  conventions  assembled  in 
New  York,  Iowa  and  Wisconsin  and  all  of  them  adopted  con- 
stitutions requiring  the  election  of  all  judges,  except  that  in 
Iowa  the  judges  of  the  Supreme  Court  were  to  be  appointed 
by  the  legislature.  Under  the  appointive  system  New  York 
had  enjoyed  a  long  and  brilliant  judicial  history;  great 
judges  and  able  courts  had  adorned  its  jurisprudence,  there 
was  really  no  serious  dissatisfaction  or  if  there  was  dis- 
satisfaction it  was  substantially  groundless,  but  the  feel- 
ing that  the  judges  should  be  accountable  to  the  people 
alone  was  so  strong  that  the  old  and  tried  system  of 
appointment  was  summarily  abandoned  and  has  never 
been  reinstated,  although  the  question  of  a  return  to  the 
old  system  was  submitted  to  the  people  in  1873  only 
to  be  overwhelmingly  defeated.3  Iowa  and  Wisconsin  were, 
however,  frontier  commonwealths,  just  aspiring  to  state- 
hood and  it  was  not  surprising  that  in  them  new  and  rad- 
ical ideas  should  be  in  the  ascendant.  In  Wisconsin  there 
was  indeed  in  the  convention  of  1846  a  respectable  and  able 
minority,  of  which  Edward  G.  Ryan  was  one  of  the  leaders, 
which  favored  the  appointive  system,  but  the  final  vote  stood 
seventy-eight  to  twenty  in  favor  of  the  elective  system.4 
This  constitution,  as  before  stated,  was  rejected  by  the  people 
largely  on  account  of  its  radical  anti-banking  provisions, 
but  the  second  constitutional  convention  readopted  the  elect- 
ive feature  of  the  first  constitution  without  substantial 
change  and  there  has  been  no  serious  attempt  to  revert  to 
the  appointive  system  in  this  state  from  that  day  to  this.  In 
Iowa  a  new  constitution  was  adopted  in  1857  providing  for 
the  election  of  all  judges  by  the  people. 


8  Lincoln's  Constitutional  History  of  N.  Y.  Vol.  2,  p.  288. 
*  Strong's  History  of  Wisconsin  Territory,  pp.   514  and  524. 


6  The  Story  of  a  Great  Court 

The  example  set  by  the  constitutional  conventions  of  1846 
was  rapidly  followed,  and  prior  to  i860  seventeen  other 
states  had  adopted  either  in  whole  or  in  part  the  elective  sys- 
tem, some  by  first  constitutions  and  some  by  revision  or 
amendment  of  existing  constitutions.  .  Thus  in  i860  twenty 
out  of  the  thirty-four  states  had  adopted  either  wholly  or 
partially  the  elective  system  ;  the  states  in  which  the  adoption 
was  partial  and  affected  only  inferior  courts  being  Alabama, 
Arkansas,  Connecticut,  Georgia  and  Maine.5  Since  i860  the 
new  states  have  generally  adopted  the  elective  system  and 
the  drift  in  favor  of  that  system  seems  still  to  be  predominant 
although  not  universal,  for  Virginia,  Louisiana,  Mississippi, 
Florida  and  Maine  have  by  revised  constitutions  returned 
either  wholly  or  partially  to  the  system  of  appointment. 

Perhaps  the  most  effective  argument  ever  used  against 
the  elective  system  has  been  the  argument  that  by  reason  of 
short  terms  of  office  and  the  practical  certainty  of  frequent 
changes  in  the  personnel  of  the  bench  as  political  majorities 
change  or  popular  moods  vary,  elected  judges  will  necessarily 
lose  their  independence  of  action  and  will  merely  register 
the  prevailing  popular  sentiment  or  whim  instead,  of  pro- 
claiming without  fear  or  favor  the  law  as  it  exists ;  in  other 
words,  that  judges  who  are  dependent  for  their  official  life 
upon  the  votes  of  the  people  will  almost  infallibly  cater  to 
that  vote  and  become  politicians  instead  of  judges.  The 
strength  of  this  argument  is  not  now  to  be  considered,  but 
that  such  results  are  to  be  seriously  apprehended,  nay,  that 
they  have  been  to  a  greater  or  less  extent  realized  in  some  of 
the  states  must  be  admitted.  Courts  of  last  resort  have  often 
been  made  the  playthings  of  political  parties,  and  too  fre- 
quently able  and  fearless  judges  at  the  very  height  of  their 
usefulness  have  been  swept  from  office  by  temporary  waves 


s  Hitchcock's  Am.  State  Constitutions,  pp.  51-52. 


Territorial  Courts  and  Constitutional  Conventions       7 

of  popular  sentiment  only  to  make  way  for  new  and  untried 
men,  who  in  their  turn  have  been  unseated  at  the  next  elec- 
tion as  the  mood  of  the  populace  changed. 

Such  a  wave  of  temporary  passion  resulting  from  an  un- 
popular decision  removed  Judge  Lawrence  from  the  Su- 
preme bench  of  Illinois  in  1874,  and  a  similar  wave  removed 
Judge  Cooley  from  the  Supreme  bench  of  Michigan  in  1885, 
the  result  in  each  case  being  a  marked  weakening  in  the 
strength  of  the  court.  Such  conditions  are  certainly  not 
favorable  to  judicial  independence  nor  to  stability  of  deci- 
sion. 

It  is  a  remarkable  fact  which  may  properly  be  noticed  here 
that  while  Wisconsin  was  one  of  the  pioneer  states  in  the 
full  and  complete  adoption  of  the  elective  system,  its  Su- 
preme Court  has  been  exceptionally  free  from  violent  and 
frequent  changes.  During  the  entire  history  of  the  separ- 
ate Supreme  Court  from  its  organization  in  1853  up  to  the 
present  time  it  has  had  but  twenty-five  judges;  during  the 
same  period  the  Supreme  Court  of  Indiana  has  had  forty- 
seven  judges  and  comparisons  with  other  states  might  be 
easily  made  with  similar  results.  Since  a  very  early  period 
in  the  history  of  Wisconsin,  with  a  single  recent  exception, 
no  sitting  judge  who  has  been  a  candidate  for  re-election  has 
been  defeated,  notwithstanding  a  number  of  attempts  in  that 
direction,  and  judges  who  have  reached  that  bench  have 
been  given  practically  a  life  tenure.  This  result  is  principally 
due  to  a  sentiment  which  has  slowly  crystallized  among  the 
people  of  the  state  to  the  effect  that  judges  of  that  Court 
should  not  be  nominated  by  political  parties  and  that  a  sitting 
judge  who  has  performed  his  duties  faithfully  should  be  re- 
tained during  his  years  of  usefulness,  regardless  of  his  po- 
litical opinions. 

There  is  little  or  nothing  to  indicate  that  this  idea  existed 
at  the  time  of  the  holding  of  either  of  the  constitutional  con- 


8  The  Story  of  a  Great  Court 

vcntions,  or  that  the  members  of  either  convention  contem- 
plated its  subsequent  development.  Indeed  the  committee 
which  reported  the  judiciary  article  in  the  first  convention 
assumed  in  their  report  that  judges  would  necessarily  be 
nominated  by  political  conventions  and  spent  some  time  in 
showing  that  judges  nominated  by  such  conventions  would 
not  be  as  likely  to  be  partisan  in  their  acts  as  judges  ap- 
pointed by  the  executive ;  °  while  in  the  convention  of  1848 
the  article  on  the  judiciary  as  first  proposed,  which  provided 
a  ten  year  term  for  circuit  judges  (who  were  also  to  con- 
stitute the  Supreme  Court  until  a  separate  Supreme  Court 
should  be  organized),  was  amended  after  considerable  de- 
bate so  as  to  make  the  terms  of  both  circuit  and  Supreme 
Court  judges  six  years  upon  the  express  ground  that  a  ten 
year  term  was  too  long  and  that  a  judge  should  frequently 
render  an  account  of  his  stewardship  to  the  people.7  Both 
constitutions,  however,  contained  a  clause  giving  the  gov- 
ernor power  in  case  of  a  vacancy  to  appoint  a  judge  to  hold 
until  the  election  of  a  successor,  and  a  further  clause  pro- 
viding that  no  election  of  a  judge  or  judges  should  be  held 
within  thirty  days  of  a  general  election.  The  first  of  these 
clauses  is  common  to  many  of  the  states  which  elect  their 
judges,  the  second  is  rare  if  not  peculiar  to  Wisconsin,  al- 
though by  some  constitutions  judicial  elections  are  directed 
to  be  held  at  a  fixed  date  not  coincident  with  the  general 
election. 

Both  of  these  provisions  have  had  a  marked  influence  upon 
the  elective  system.  Eleven  of  the  twenty-five  judges  of  the 
Supreme  Court  have  been  placed  there  originally  by  ap- 
pointment and  such  appointments  have,  with  but  one  excep- 


0  Journal  of  the  Constitutional  Convention  of  1846,  p.  106  et  seq. 

1  Journal    and    Debates    of   the    Constitutional    Convention    of 
1847-48,  pp.  67,  392,  438,  and  468. 


Territorial  Courts  and  Constitutional  Conventions       9 

tion,  been  approved  by  the  people  by  subsequent  election. 
Among  the  appointed  judges  were  Dixon  and  Ryan,  two  of 
the  very  greatest  of  the  jurists  who  have  occupied  that 
bench.  The  effect,  therefore,  of  the  first  named  clause  has 
been  unquestionably  to  greatly  modify  the  elective  system  by 
incorporating  in  it  the  feature  of  temporary  appointment 
which  in  practical  operation  has  placed  upon  the  bench  per- 
manently nearly  fifty  per  cent  of  the  judges  by  appointment 
instead  of  by  election. 

The  clause  prohibiting  the  holding  of  a  judicial  election  at 
the  time  of  a  general  election  or  at  any  time  within  thirty 
days  of  such  an  election  has  doubtless  had  greater  effect, 
however,  in  eliminating  party  politics  from  judicial  elections 
than  any  other  one  cause.  The  original  intent  of  this  clause 
doubtless  was  to  divorce  such  elections  from  the  excitement 
and  turmoil  of  a  general  election,  so  that  the  attention  of 
the  voter  should  be  given  wholly  to  the  relative  merits  of 
the  opposing  judicial  candidates.  If  there  was  any  serious 
idea  that  it  would  have  any  influence  in  doing  away  with 
party  nominations  and  making  judicial  campaign  non-par- 
tisan there  is  little  or  nothing  in  the  records  of  the  conven- 
tions to  show  that  fact.  Nevertheless  such  has  been  its  in- 
fluence beyond  any  question ;  in  fact  without  this  provision 
it  is  difficult  to  see  how  it  would  have  been  possible  to  make 
judicial  contests  in  any  degree  non-partisan.  If  judges 
were  to  be  elected  at  presidential  and  gubernatorial  elec- 
tions it  is  reasonably  certain  that  they  would  be  nominated 
and  elected  as  party  candidates  upon  party  tickets ;  a  non- 
partisan candidate  for  a  judgeship  would  have  great  dif- 
ficulty in  making  any  headway  when  men's  minds  were 
wrought  up  by  the  excitement  of  a  great  political  con- 
test.    It  must  be  said,  however,  that  this  clause  had  little 


1 0  The  Story  of  a  Great  Court 

immediate  effect  in  the  elimination  of  partisanship  from 
judicial  elections.  For  more  than  a  decade  there  was  no 
lack  of  fierce  partisan  conflicts  in  judicial  elections.  As 
time  went  on  it  had  its  effect,  however,  as  will  abundantly 
appear  to  anyone  who  gives  careful  attention  to  the  sub- 
sequent history  of  the  Court. 


The  First  Supreme  Court  and  its  Judges  1  I 


CHAPTER  II 

THE  FIRST  SUPREME  COURT  AND  ITS  JUDGES 

The  constitution  of  1848  divided  the  state  into  five  judicial 
circuits,  provided  for  the  election  of  a  judge  in  each  circuit 
and  made  the  circuit  judges  also  justices  of  the  Supreme 
Court  for  the  term  of  five  years  and  thereafter  until  the  leg- 
islature should  provide  for  a  separate  Supreme  Court  which 
was  to  be  composed  of  one  chief  justice  and  two  associate 
justices.  The  circuit  judges  so  to  be  elected  were  to  be 
classified  so  that  the  term  of  one  should  be  two  years  and  of 
the  others  three,  four,  five  and  six  years  respectively  and 
thereafter  the  term  was  to  be  six  years. 

The  circuits  were  composed  as  follows:  the  first  circuit, 
the  counties  of  Racine,  Walworth,  Rock  and  Green ;  the 
second,  the  counties  of  Milwaukee,  Waukesha,  Jefferson  and 
Dane  ;  the  third,  the  counties  of  Washington,  Dodge,  Colum- 
bia, Marquette,  Sauk  and  Portage ;  the  fourth,  the  counties 
of  Brown,  Manitowoc,  Sheboygan,  Fond  du  Lac,  Winnebago 
and  Calumet ;  the  fifth,  the  counties  of  Iowa,  La  Fayette, 
Grant,  Crawford  and  St.  Croix,  the  county  of  Richland  be- 
ing attached  to  Iowa,  the  county  of  Chippewa  to  Crawford, 
and  the  county  of  La  Pointe  to  St.  Croix  for  judicial  pur- 
poses. 

The  legislature  provided  for  the  first  election  to  take  place 
on  the  first  Monday  in  August,  1848,  and  it  was  so  held.1 

It  is  stated  in  the  Milwaukee  Sentinel  and  Gazette  of  July 
it,  1848,  that  the  Democrats  called  party  conventions  in  all 


1  Laws  of  1848,  p.  19. 


1  2  The  Story  of  a  Great  Court 

of  the  five  circuits.  David  Noggle  was  nominated  in  the  first 
circuit,  Abram  D.  Smith  in  the  second,  Charles  H.  Larrabce 
in  the  third,  E.  W.  Drury  in  the  fourth,  but  for  some  reason 
no  nomination  seems  to  have  been  made  in  the  fifth  Circuit 
so  far  as  I  have  ascertained. 

The  Whigs  nominated  Edward  V.  Whiton  in  the  first  cir- 
cuit and  Francis  Randall  in  the  second  circuit,  but  seem  to 
have  made  no  further  party  nominations,  probably  because 
the  party  was  in  the  minority.  Levi  Hubbell  ran  as  an  in- 
dependent candidate  in  the  second  circuit,  which  then  in- 
cluded both  Milwaukee  and  Dane  counties.  James  M.  Clark 
and  Charles  Acker  ran  in  the  same  way  in  the  third  circuit 
and  Alexander  W.  Stow  in  the  fourth,  while  in  the  fifth 
there  were  five  candidates  all  calling  themselves  independ- 
ents, viz.  Mortimer  M.  Jackson,  Moses  M.  Strong,  B.  C 
Eastman,  Alfred  Brunson  and  Parley  Eaton. 

The  election  resulted  in  the  choice  of  Edward  V.  Whiton, 
Whig,  in  the  first  district ;  Levi  Hubbell,  independent  Demo- 
crat, in  the  second ;  Charles  H.  Larrabee,  Democrat,  in  the 
third ;  A.  W.  Stow,  independent,  in  the  fourth  and  M.  M. 
Jackson,  independent  Whig,  in  the  fifth.  These  men  com- 
posed the  first  Supreme  Court.  As  circuit  judges  they  held 
regular  terms  of  the  circuit  court  in  their  respective  circuits 
for  the  trial  of  causes  and  assembled  at  Madison  twice  a 
year  and  sat  in  bank  as  the  Supreme  Court  to  dispose  of 
appeals  from  the  circuit  courts.  Lots  were  drawn,  as  pro- 
vided by  the  law  governing  their  election  to  determine  the 
length  of  their  terms  and  Judge  Stow  drew  the  short  term 
of  two  years  and  was  also  chosen  by  his  associates  as  Chief 
Justice.  Judge  Stow  was  opposed  to  the  principle  of  an 
elective  judiciary  and  had  announced  before  his  election  that 
he  would  not  stand  for  re-election  and  upon  the  expiration 
of  his  term  Timothy  O.  Howe  of  Green  Bay  was  elected  as 
his  successor  and  took  his  seat  January  2,  1851 ;  otherwise 


The  First  Supreme  Court  and  its  Judges  1 3 

the  personnel  of  the  Court  remained  unchanged  until  1853, 
except  that  an  additional  or  sixth  circuit  was  created  by- 
Chapter  268  of  the  laws  of  1850,  consisting  of  Crawford, 
Chippewa,  Bad  Axe,  Black  River,  St.  Croix  and  La  Pointe 
Counties,  and  Wiram  Knowlton  was  elected  judge  of  the 
new  circuit  in  July  of  that  year,  taking  his  seat  on  the  Su- 
preme bench  at  the  December  term,  1850.  Judge  Hubbell 
succeeded  Judge  Stow  as  Chief  Justice  and  held  one  year, 
when  Judge  Jackson  was  elected  to  the  office  but  resigned 
on  the  same  day  and  Judge  Whiton  was  chosen  and  re- 
mained in  that  position  until  the  court  ceased  to  exist  by  rea- 
son of  the  organization  of  the  separate  Supreme  Court. 

Short  as  the  life  of  this  temporary  Supreme  Court  was  its 
judges  were  able  and  learned  men  who  deserve  more  than 
mere  passing  mention.  Brief  biographical  sketches  of  them 
appear  in  volume  three  of  Pinney's  Wisconsin  Reports  as 
well  as  in  Berryman's  History  of  the  Bench  and  Bar  of  Wis- 
consin and  from  these  sources  the  following  sketches  which 
the  author  recognizes  as  inadequate  have  been  principally 
drawn. 

At  the  head  of  the  list  without  doubt  stands  the  name  of 
Edward  Vernon  Whiton ;  distinguished  alike  as  a  legislator, 
a  constitution  maker  and  a  judge,  his  services  to  the  state 
richly  entitled  him  to  a  comprehensive  biography  rather  than 
a  mere  brief  sketch.  It  is  greatly  to  be  regretted  that  Chief 
Justice  Cole,  who  served  four  years  with  him  upon  the  bench 
and  who  entertained  for  him  a  love  and  respect  which 
amounted  to  veneration,  did  not  undertake  the  task ;  had  he 
done  so  unquestionably  much  light  would  have  been  thrown 
upon  territorial  and  early  state  history  of  which  we  must 
now  remain  deprived. 

Judge  Whiton  was  born  June  2,  1805,  at  South  Lee,  Berk- 
shire County,  Massachusetts,  of  an  ancestry  which  had  ren- 
dered distinguished  services  in  colonial  affairs  and  in  the  rev- 


1 4  The  Story  of  a  Great  Court 

olutionary  war.  He  learned  the  trade  of  a  carpenter  and 
millwright  in  his  native  town  where  he  lived  until  1835. 
But  the  bent  of  his  mind  was  undoubtedly  towards  intel- 
lectual pursuits  and  he  read  law  in  a  lawyer's  office  and  also 
acted  as  librarian  of  the  village  library  of  about  three  hun- 
dred volumes.  Here  he  acquired  a  great  fund  of  historical 
knowledge  which  stood  him  in  good  stead  in  his  later  life. 
Coming  west  in  1835  he  stopped  for  a  time  in  Lorraine 
County,  Ohio,  and  came  to  Wisconsin  in  1837,  settling  on  a 
tract  of  land  near  the  present  city  of  Janesville.  Here  he 
built  with  his  own  hands  his  log  cabin  and  afterwards  a 
more  pretentious  house.  In  1838  he  was  elected  a  member 
of  the  territorial  house  of  representatives  and  served  during 
the  sessions  of  1838,  1839  and  1839-40,  and  being  re-elected 
he  also  served  during  the  sessions  of  1840-41  and  1841-42. 
The  laws  of  the  territory  were  in  a  confused  state  and  in 
December,  1838,  a  committee  was  appointed  to  revise  the 
existing  laws  and  report  the  revision  for  passage  at  an  ad- 
journed session,  which  was  held  in  January  following.  The 
committee  was  composed  of  Messrs.  Morgan  L.  Martin, 
Marshall  M.  Strong  and  James  Collins  on  the  part  of  the 
council,  and  Messrs.  Edward  V.  Whiton,  B.  Shackelford  and 
Augustus  Story  on  the  part  of  the  house.  The  result  is  to  be 
found  in  the  revised  statutes  of  1839,  which  was  the  first 
complete  code  of  law  possessed  by  the  territory.  Consider- 
ing the  brief  time  which  was  allowed  the  committee  for  its 
work  it  must  certainly  be  considered  a  remarkable  achieve- 
ment. The  legislature  after  amending  the  proposed  laws  in 
various  particulars  passed  them  and  placed  the  printing  in 
charge  of  Mr.  Whiton,  whose  solid  learning,  clearness  of 
intellect  and  ability  to  dispatch  intellectual  labor  had  now 
become  fully  recognized.  The  book  appeared  in  the  month 
of  June,  1839,  and  for  ten  years  remained  the  basic  law  of 


ALEXANDER   WOLCOTT  STOW. 


The  First  Supreme  Court  and  its  Judges  1  5 

the  territory  and  also  became  the  basis  of  the  revisions  of 
1849  and  1858.  During  the  years  1842  to  1846  inclusive  he 
was  a  member  of  the  territorial  council  and  in  1848  upon 
the  rejection  of  the  first  constitution  he  was  elected  a  mem- 
ber of  the  second  constitutional  convention.  Here  he  was 
an  active  and  influential  figure;  the  field  was  well  suited  to 
his  abilities ;  he  was  in  his  prime  both  physically  and  men- 
tally ;  his  intellect  had  been  fully  ripened  by  his  legislative 
experiences  and  in  every  important  debate  he  was  at  the 
front.  Unfortunately  his  remarks  have  not  been  preserved. 
He  was  one  of  three  members  of  the  convention  who  gave 
notice  to  the  reporters  that  they  did  not  wish  their  remarks 
to  be  reported  for  publication  in  the  journal.2  Thus  while 
it  appears  upon  a  very  large  proportion  of  the  pages  of  the 
journal  that  he  made  remarks  upon  the  various  questions 
under  discussion,  in  most  instances  we  simply  find  that  "Mr. 
Whiton  spoke"  or  "Mr.  Whiton  made  some  remarks"  or 
some  equally  disappointing  and  meagre  statement.  In  a  few 
instances  a  brief  resume  of  his  remarks  is  given,  but  this 
seems  only  to  have  been  done  where  it  was  necessary  in  or- 
der to  enable  the  allusions  of  other  speakers  on  the  subject 
to  be  understood.  This  fact  has  been  regretted  by  the  Su- 
preme Court  in  cases  involving  the  construction  of  constitu- 
tional provisions,  especially  the  section  as  to  the  rule  of  taxa- 
tion (Sec.  I,  Art.  VIII),  for  it  has  been  felt  that  his  remarks 
would  doubtless  have  thrown  much  light  on  difficult  ques- 
tions of  constitutional  construction.3 

His  election  to  the  circuit  bench  followed,  as  has  been  al- 
ready stated,  and  five  years  later  his  election  to  the  bench  of 
the  separate  Supreme  Court  as  its  first  Chief  Justice.    From 


2  Journal    and    Debates    Const.    Conv.    1847-1848.     Reporter's 
Preface. 

3  Nunnemaeher  v.  State,  129  Wis.  190;    see  page  206. 


1 6  The  Story  of  a  Great  Court 

this  time  on,  therefore,  his  history  becomes  the  history  of 
the  bench  itself  and  appears  in  its  proper  place  in  this  work. 

As  to  Judge  Whiton's  personal  characteristics  a  few  words 
ought  at  least  to  be  said.  He  was  a  very  self  contained  man, 
always  taciturn  and  always  having  a  serious  and  preoccu- 
pied air.  He  had  few  social  pleasures  and  never  made  his 
residence  at  Madison  but  continued  to  reside  in  Janesville, 
only  coming  to  the  Capital  as  official  duty  called  him,  and 
when  he  did  come  he  generally  made  his  home  with  his 
friend  Judge  Hood,  instead  of  at  a  hotel  or  boarding  house. 
It  must  needs  be  said  that  during  some  part  of  his  earlier 
life  he  had  an  unfortunate  weakness  for  intoxicating  liquor 
but  this  weakness  had  been  overcome  before  he  went  on 
the  bench.  He  was  an  excellent  presiding  officer  always 
listening  to  argument  (even  though  dull)  with  respectful 
attention.  His  mind  at  times  under  such  circumstances 
may  have  been  far  away,  but  his  face  did  not  indicate  it. 

Levi  Hubbell,  who  was  elected  as  an  independent  Demo- 
crat in  the  second  district,  was  an  able  and  ambitious  man  of 
fine  presence  and  courtly  manners  who  cut  a  large  figure  in 
the  early  history  of  the  state.  Born  at  Ballston,  N.  Y.  in- 
1808,  he  graduated  at  Union  College  in  1827  and  early  be- 
gan the  practice  of  law  with  his  brother  at  Canandaigua, 
New  York.  When  twenty-five  years  of  age  he  became  ad- 
jutant general  of  New  York  and  held  the  office  for  three 
years  and  in  1841  became  a  member  of  the  legislature  of 
that  state.  In  1844  he  came  to  Milwaukee  and  became  a 
member  of  the  firm  of  Finch  &  Lynde  and  in  1848  he  was  a 
delegate  to  the  national  Democratic  convention  of  that  year. 
His  career  upon  the  circuit  bench  was  a  stormy  one  and  the 
storms  culminated  in  his  impeachment  in  the  spring  of  1853. 
While  he  was  acquitted  by  a  large  vote  on  all  of  the  charges 
he  never  fully  recovered  from  the  effect  of  the  impeachment. 


The  First  Supreme  Court  and  its  Judges  1 7 

General  Bryant,  who  knew  him  personally,  has  this  to  say 

of  the  acquittal : 4 

"Judge  Hubbell  had  the  sympathies  of  a  large  portion  of  the 
people  of  the  state,  especially  the  people  of  Milwaukee,  during  the 
trial  and  his  acquittal  gave  his  friends  opportunity  to  manifest 
their  joy  at  the  result.  A  special  train  loaded  with  a  committee 
went  out  part  way  to  meet  him,  and  on  his  return  to  Milwaukee 
a  large  throng  met  him  and  marched  in  a  triumphant  procession 
through  the  streets,  the  like  of  which  that  city  had  never  seen. 
A  public  reception,  then  a  monster  procession  to  accompany  him 
to  his  home  made  the  day  one  of  congratulation  and  holiday 
parade." 

Notwithstanding  this  enthusiastic  reception  at  his  home 
Judge  Hubbell  doubtless  realized  that  his  reputation  had 
suffered  serious  injury.  He  resigned  his  judgeship  in  1856 
and  resumed  the  practice  in  Milwaukee.  In  1863  he  was 
elected  to  the  legislature  and  took  a  strong  stand  in  favor  of 
the  Union.  In  1869  when  a  vacancy  occurred  in  the  office 
of  circuit  judge,  a  large  and  numerously  signed  petition  was 
presented  to  Governor  Fairchild,  asking  for  Judge  Hubbeli's 
appointment.    General  Bryant  says  of  this  incident : 

"Governor  Fairchild's  refusal  to  appoint  him  was  one  of  the 
keenest  disappointments  of  his  life.  His  high  but  dignified 
anger,  when  the  suave  but  stout  hearted,  one  armed  Governor 
told  the  judge  that  he  did  not  feel  justified  in  reinstating  him 
upon  the  bench,  was  one  of  the  most  dramatic  episodes  which 
the  writer — then  executive  secretary  to  Governor  Fairchild — 
ever  witnessed." 

General  Bryant  further  says : 

"Of  fine  presence,  most  agreeable  manners  and  a  bearing  which 
betokened  leadership,  a  man  potent  to  influence  others,  it  is  not 
unlikely  that  the  unfortunate  episode  of  his  impeachment  ar- 
rested a  career  which  otherwise  might  have  been  most  success- 
ful." 

He  was  appointed  United  States  district  attorney  for  the 
Eastern  district  of  Wisconsin  by  President  Grant  in  1876 


4  Green  Bag,  Vol.  9,  pp.   67-68. 


1 8  The  Story  of  a  Great  Court 

and  held  the  office  for  five  years.    He  died  at  the  age  of 
sixty-eight  years  as  the  result  of  a  fall  upon  an  icy  sidewalk. 

Charles  Hathaway  Larrabee,  who  was  elected  as  a 
Democrat  in  the  third  judicial  circuit,  was  a  remarkable 
man  with  a  varied  and  romantic  history.  Born  at  Rome, 
Oneida  County,  New  York,  November  9,  1820,  of  Huguenot 
ancestry,  he  numbered  among  his  forbears  colonial  and  revo- 
lutionary heroes  upon  both  sides.  He  acquired  his  educa- 
tion at  Springfield  academy  and  at  Granville  (now  Den- 
nison)  College  in  the  state  of  Ohio  and  read  law  at  Spring- 
field. He  spent  some  time  in  Mississippi,  where  he  was  ad- 
mitted to  the  bar  in  1841,  and  came  to  Chicago  in  1844, 
where  he  edited  the  Chicago  Advocate  for  a  time  and  served 
one  term  as  city  attorney ;  in  1846  he  came  to  Wisconsin  and 
settled  at  Horicon,  Dodge  County,  and  in  the  following  year 
he  was  elected  a  member  of  the  second  constitutional  con- 
vention. In  this  convention  he  was  active  and  influential, 
strongly  advocating  the  exemption  of  homesteads,  the  re- 
striction of  state  indebtedness,  the  prohibition  of  state  in- 
ternal improvements  and  also  the  clauses  preventing  the 
division  of  counties  without  local  consent. 

He  served  upon  the  circuit  bench  until  1858,  when  he  re- 
signed and  ran  for  Congress  as  a  Douglas  Democrat  and  was 
elected  in  a  district  which  had  a  normal  Republican  majority 
of  2,500.  He  was  active  in  his  Congressional  duties,  but  was 
defeated  for  re-election  in  i860.  When  Fort  Sumpter  was 
fired  on  he  at  once  offered  his  services  to  Governor  Randall 
and  was  appointed  Major  of  the  5th  regiment  of  Wisconsin 
infantry.  He  served  with  distinction  in  the  peninsula  cam- 
paign and  was  promoted  to  the  colonelcy  of  the  24th  regi- 
ment, which  he  recruited  largely  himself,  but  a  year  later  he 
was  compelled  to  resign  his  commission  by  reason  of  shat- 
tered health.     In  1864  he  removed  to  the  Pacific  coast  and 


LEVI    HUBBELL. 


The  First  Supreme  Court  and  its  Judges  1 9 

resided  for  a  time  in  Oregon  and  subsequently  in  Washing- 
ton, but  was  compelled  by  ill  health  to  seek  the  softer  cli- 
mate of  Southern  California,  where  he  met  a  violent  death 
in  a  railway  accident  January  20,  1883. 

Judge  Larrabee  was  a  man  of  great  natural  ability,  prompt 
and  impartial  as  a  judge,  a  zealous  partisan,  a  devoted  friend, 
an  attractive  and  forceful  speaker  and  his  opinions  rendered 
while  he  was  on  the  bench  of  the  Supreme  Court  stamp  him 
as  a  lawyer  of  ability. 

Of  the  life  of  Alexander  Wolcott  Stow  prior  to  his  resi- 
dence in  Wisconsin  little  is  certainly  known.  His  life  long 
friend,  Hon.  Morgan  L.  Martin  of  Green  Bay,  wrote  a  brief 
sketch  of  him  which  appears  in  Judge  Pinney's  biographical 
sketches,5  from  which  the  following  is  taken  : 

"Alexander  W.  Stow  was  born  at  Lowville,  N.  Y.«  on  the  fifth 
day  of  February,  1805.  His  father,  Silas  Stow,  was  a  prominent 
Federalist  in  the  early  political  struggles  of  that  state,  was 
chief  justice  of  the  county  court,  which  made  him  the  associate 
of  the  supreme  judge  at  nisi  prius,  and  for  one  term  represented 
his  district  in  Congress.  He  was  a  man  of  superior  ability  and 
culture  and  possessed  a  fund  of  general  knowledge,  which  placed 
him  in  the  front  rank  of  the  public  men  of  his  day.  The  son 
inherited  much  of  the  talent  of  the  father.  The  bench  and  bar 
of  New  York,  during  the  first  quarter  of  the  present  century, 
comprised  a  host  of  distinguished  lawyers.  During  the  ascend- 
ancy of  such  men  as  Kent,  Spencer,  Piatt,  Elisha  Williams, 
Van  Buren,  Talcott  and  many  others  equally  prominent  it  was 
impossible  to  attain  a  respectable  position  in  the  profession  with- 
out the  patient  study  of  years,  or  a  brilliant  intellect  which  could 
win  its  way  even  against  the  subtleties  of  the  accomplished 
pleader.  Judge  Stow  was  never  a  close  student,  but  under  the 
tutelage  of  his  father  and  the  eminent  men  with  whom  he  was 
brought  into  association  in  early  life,  he  became  almost  by 
intuition  an  accomplished  scholar. 


5  3  Pinney's  Wis.  Reports,  605. 

«  General  Bryant  says  he  was  born  in  Middleton,  Conn.,  in  1804. 
See  Vol.  9,  Green  Bag,  p.  70. 


20  The  Story  of  a  Great  Court 

"At  the  age  of  sixteen  he  was  placed  at  the  military  academy 
where  he  remained  only  a  single  year  and  returned  to  enter  a 
law  office  in  his  native  village.  In  due  time  he  was  admitted  to 
practice  and  formed  a  partnership  with  Hon.  Justin  Butterfield, 
late  commissioner  of  the  general  land  office  then  residing  at 
Sacketts  Harbor.  That  the  superior  ability  of  young  Stow  was 
fully  appreciated  by  him  (Butterfield)  may  be  inferred  from  a 
remark  of  his  in  1826  that  'he  had  never  known  a  man  of 
superior  constitutional  powers.'  A  few  years  of  routine  practice, 
during  a  short  respite  from  which  he  spent  a  few  months  in 
European  travel,  bring  him  to  the  time  of  his  election  as  chief 
justice  of  our  state." 

Chief  Justice  Ryan  was  a  great  admirer  of  Judge  Stow 
and  he  penned  an  addendum  to  Judge  Martin's  sketch 7 
from  which  the  following  glowing  extracts  are  taken : 

"The  writer  did  not  know  Judge  Stow  before  they  met  in 
Wisconsin.  From  thence  until  the  judge's  death  they  were  in- 
timate and  fast  friends.  Knowing  the  judge  then  in  the  prime 
of  his  professional  life,  the  writer  finds  it  difficult  to  believe  that 
the  late  chief  justice  had  not  been  at  some  time  a  close  and 
extensive  student.  His  acquaintance  with  books,  in  and  out  of 
the  line  of  professional  reading,  was  varied  and  extensive.  He 
might  have  been  called  almost  a  scholar  in  general  literature,  and 
he  most  surely  was  one  in  professional  learning.  He  was  one 
of  the  best,  if  not  the  very  best,  common  lawyer  whom  the  writer 
has  ever  met.  He  was  not  one  of  those  to  whom  the  common 
law  was  a  fragmentary  confusion  of  disjointed  rules.  He  had 
mastered  not  only  its  details  but  the  history  out  of  which  it 
grew,  and  his  broad  and  vigorous  mind  grasped  it  as  a  system 
in  its  full  spirit,  and  comprehended  the  mutual  relations  and 
symmetry  of  all  its  parts.  He  well  understood  that  it  is,  with 
all  its  blemishes,  the  noblest  code  of  personal  rights  which  the 
world  has  ever  known;  which  educates  men  in  free  and  self 
reliant  manhood,  and  which  has  done  more  than  all  written  sys- 
tems or  constitutions  for  the  freedom  of  the  nations  who  are 
blessed  in  its  possession.  Judge  Stow  was  certainly  an  accom- 
plished common  lawyer.  *  *  *  There  were  indeed  occasional 
eccentricities  in  his  thinking  as  well  as  in  his  acting.     Making 


i  3  Pinney's  Reports,  p.  607. 


CHARLES  HATHAWAY  LARRABEE 


The  First  Supreme  Court  and  its  Judges  2 1 

some  allowance  for  these  he  was  surely  a  great  man  intellectually. 
The  writer  doubts  if  he  ever  knew  an  abler.  His  views  were 
always  vigorous,  often  profound  and  generally  discriminating 
and  just.  He  was  indeed  a  man  of  strong  prejudices,  but  these 
rarely  if  ever  influenced  him  on  the  bench,  never  consciously. 
He  loved  truth  for  truth's  sake  with  intense  love.  He  loved 
justice  for  itself  with  natural  and  professional  devotion.  Many 
disliked  the  man  but  none  ever  doubted  the  judge.  He  rever- 
enced the  judicial  office  and  while  he  held  it  he  made  all  men 
respect  it.  He  had  a  high  sense  of  judicial  dignity  and  author- 
ity; and  there  was  no  trifling  with  the  Court  in  which  he  pre- 
sided.    On  the  bench  he  looked  what  he  was,  a  great  judge." 

After  his  retirement  from  the  bench  in  January,  1851,  he 
lived  not  quite  four  years  and  while  he  retained  his  residence 
on  his  farm  at  Fond  du  Lac  his  time  was  principally  spent 
at  Milwaukee.  General  Bryant  says  that  he  resumed  the 
practice,8  but  Judge  Ryan  says  he  lived  in  private,  "never 
again  resuming  the  profession."  9 

This  apparent  contradiction  recalls  to  my  mind  a  story 
frequently  related  by  the  late  Charles  W.  Felker  of  Oshkosh 
which  may  be  of  interest;  the  story  was  to  the  effect  that 
after  Judge  Stow  left  the  bench  a  partnership  was  arranged 
between  Stow  and  Ryan,  and  that  in  the  course  of  time 
Stow  came  to  Milwaukee  to  commence  business,  bringing 
with  him  a  cooking  kit  in  a  bag,  and  a  coffee  pot,  as  he  was 
in  the  habit  of  cooking  his  own  meals ;  he  arrived  at  the  of- 
fice in  Ryan's  absence  and  laid  down  the  bag  and  coffee  pot 
on  the  floor  and  waited  for  Ryan's  appearance ;  when  Ryan 
came  in  his  attention  was  at  once  attracted  by  the  tramplike 
appearance  of  the  cooking  kit,  and,  with  eyes  blazing,  he 
said,  "What's  that?"  Stow  said  somewhat  apologetically, 
"That's  my  cooking  kit."  Ryan  turned  and  said,  "Judge 
Stow  !  this  partnership  is  dissolved." 


s  Green  Bag,  Vol.  9,  p.  71. 

0  3  Pinney's  Wis.  Reports,  p.  609. 


22  The  Story  of  a  Great  Court 

My  curiosity  was  somewhat  aroused  by  these  contradictory 
statements  about  Judge  Stow's  life  after  he  left  the  bench  and 
T  went  to  the  files  of  the  Milwaukee  Sentinel  to  see  if  I  could 
obtain  any  light  on  the  subject  from  the  professional  cards 
which  at  that  time  were  almost  universally  inserted  in  the 
newspapers.  Here  I  found  something  that  puzzled  me  still 
more : 

From  March  24th  up  to  Nov.  30,  1852  the  following 
double  card  appeared  in  the  Sentinel : 


RYAN  &  BRIGHAM 

Attorneys,  Solicitors  and  Counsellors 

Will  practice  in  the  Courts  of  this  State 

E.  G.  Ryan  Jerome  R.  Briqham 

STOW  &  BRIGHAM 

Attorneys,  Solicitors  and  Counsellors 

Will  practice  in  the  Courts  of  the  United  States 

Alex  W.  Stow  Jerome  R.  Brigham 

Offices 

Arcade  Building,  No.  171  East  Water  St. 

Milwaukee 


I  have  not  been  able  to  find  anyone  who  can  explain  the 
reason  for  the  existence  of  this  strange  business  card.  It 
would  seem  that  Judge  Stow  nominally  at  least  practiced  in 
Milwaukee  and  in  the  same  offices  with  Ryan,  and  it  would 
also  seem  that  for  some  reason,  Ryan,  though  practicing  in 
the  same  office  with  Stow,  was  not  in  partnership  with  him 
and  confined  his  own  practice  to  the  State  Courts.  I  asked 
Judge  James  G.  Jenkins,  who  was  later  in  partnership  with 
Ryan,  if  he  could  throw  any  light  on  the  subject  and  he  said 
he  could  not.    Judge  Jenkins  came  to  Wisconsin  in  1857 ;  he 


The  First  Supreme  Court  and  its  Judges  23 

told  me  that  he  had  been  informed  that  Stow  was  for  a  time 
in  partnership  with  Ryan  &  Brigham  after  he  left  the  bench 
under  the  name  of  Ryan,  Stow  &  Brigham  and  he  had  always 
supposed  such  to  be  the  case.  He  could  suggest  no  explana- 
tion of  the  strange  card  except  that  possibly  Ryan  (who 
never  liked  the  United  States  Courts)  for  a  time  declined  to 
practice  in  them. 

Another  story  concerning  Judge  Stow  which  is  related  on 
what  appears  to  be  good  authority  illustrates  the  nature  of 
the  man  and  his  peculiarities.  He  was  devoted  to  hunting 
and  fishing  and  very  fond  of  game  dinners.  Like  many 
gourmands  he  made  a  practice  of  hanging  his  game  a  long 
time  before  eating  it.  He  at  one  time  invited  a  friend  to  dine 
with  him  and  set  out  as  a  great  delicacy  some  game  which 
had  hung  so  long  that  the  odor  was  very  penetrating;  the 
friend  could  not  eat  it  and,  when  Judge  Stow  asked  him  what 
was  the  matter  with  his  appetite,  bluntly  replied  that  he 
could  not  stand  the  smell  of  the  game.  "Eat  away,"  said 
Judge  Stow,  "J  didn't  invite  you  to  smell  it,  I  invited  you  to 
eat  it." 

Judge  Stow  died  at  Milwaukee  Sept.  14,  1854,  having 
never  married. 

The  career  of  Timothy  Otis  Howe  was  so  distinguished  in 
the  great  field  of  national  politics  that  it  is  rarely  remem- 
bered that  his  public  life  in  this  state  commenced  upon  the 
bench,  yet  so  it  was.  He  resided  at  Green  Bay,  whither  he 
had  come  in  1845  from  Maine,  being  then  twenty-nine  years 
of  age.  He  was  at  that  time  a  lawyer  of  ability  and  at  once 
took  a  prominent  position  both  in  professional  and  political 
life.  He  was  an  ardent  Whig  and  in  1848  was  a  candidate 
for  Congress  on  that  ticket  but  was  defeated.  In  1850  he 
was  elected  Judge  of  the  fourth  circuit  to  succeed  Judge 


24  The  Story  of  a  Great  Court 

Stow  and  thus  became  for  two  years  one  of  the  justices  of 
the  Supreme  Court,  the  duties  of  which  office  he  discharged 
with  marked  ability. 

After  the  organization  of  the  separate  Supreme  Court  he 
continued  to  hold  the  office  of  circuit  judge  until  1855,  when 
he  resigned  and  resumed  the  practice.  He  was  an  effective 
and  witty  speaker  and  a  logical  and  strong  debator.  Prob- 
ably a  political  career  appealed  to  him  more  strongly  than  a 
judicial  one  and  the  meagre  salary  ($1,500)  of  a  circuit 
judge  doubtless  was  a  strong  inducement  to  quit  the  bench. 
He  at  once  became  an  active  Republican  leader,  but  soon 
fell  at  outs  with  the  great  mass  of  his  party  on  the  question 
of  state  rights,  as  will  appear  later  in  this  work ;  he  strongly 
opposed  the  doctrine  that  a  state  court  could  declare  acts  of 
Congress  unconstitutional  and  that  there  was  no  remedy  by 
appeal  to  the  federal  courts.  This  courageous  stand  un- 
doubtedly defeated  him  for  the  United  States  Senate  in 
1857,  but  in  1861  his  time  came  and  he  was  triumphantly 
elected  to  that  body.  After  that  date  his  career  became  a 
part  of  the  nation's  history  and  no  review  of  it  will  be  at- 
tempted here.    He  died  at  Racine,  March  25,  1883. 

Mortimer  Melville  Jackson  was  born  in  Rensallaersville, 
Albany  County,  New  York,  of  Puritan  ancestry,  and  after 
some  years  spent  in  mercantile  pursuits  turned  his  attention 
to  the  law  and  was  admitted  to  the  bar  in  1838.  He  came  to 
Wisconsin  and  settled  at  Mineral  Point  in  1839  and  soon  be- 
came prominent  at  the  bar  and  in  politics.  He  was  a  Whig 
and  in  1841  became  attorney  general  of  the  territory,  which 
office  he  held  for  five  years.  He  was  deeply  interested  in 
popular  education  and  in  an  educational  convention  in  1846 
proposed  a  scheme  for  a  common  school  system  which  was 
afterwards  substantially  adopted  by  the  makers  of  the  state 
constitution.    When  he  was  elected  circuit  judge  in  1848  his 


«s 


TIMOTHY  OTTS  HOWE. 


The  First  Supreme  Court  and  its  Judges  .25 

circuit  comprised  about  one  third  of  the  territory  of  the 
state,  including  a  vast  area  of  unbroken  prairie  and  forest 
and  he  was  obliged  to  travel  great  distances.  He  served  as 
circuit  judge  and  as  member  of  the  Supreme  Court  until 
1853.  He  was  a  candidate  for  United  States  Senator  in 
1857,  when  Judge  Howe  and  Judge  Doolittle  were  also  can- 
didates, and  Judge  Doolittle  was  elected. 

Judge  Doolittle  had  joined  the  Republican  party  but  a 
very  few  months  previously,  he  having  always  been  a  promi- 
nent Democrat.  Judge  Jackson  was  greatly  disappointed 
and  felt  that  his  long  services  as  a  Whig  and  a  Republican 
deserved  recognition ;  it  is  said  that  when  asked  his  opinion 
of  the  result  he  said  emphatically,  "Prompt  pay,  gentlemen, 
d d  prompt  pay." 

In  1861  he  was  appointed  United  States  Consul  at  Halifax 
by  President  Lincoln  and  discharged  the  duties  of  the  office 
with  great  ability  and  to  the  entire  satisfaction  of  both  gov- 
ernments until  1882,  when  he  resigned  and  spent  his  declin- 
ing years  at  Madison,  where  he  died  of  old  age  October  13, 
1889.  He  was  a  cultivated  and  dignified  gentlemen  of  the 
old  school,  a  man  of  ability  who  discharged  his  duties  in 
every  position  with  great  fidelity  and  in  the  most  honorable 
and  satisfactory  manner.  Leaving  no  immediate  relatives, 
he  bequeathed  the  greater  part  of  his  competency  to  the  law 
department  of  the  University  of  Wisconsin,  to  support  a  pro- 
fessorship called  after  his  name. 

Wiram  Knowlton  was  born  in  Chenango  County,  New 
York,  in  1816,  came  to  Wisconsin  in  1837  and  read  law  with 
Parley  Eaton,  Esq.,  at  Mineral  Point.  He  first  practiced 
law  at  Platteville,  Grant  County,  and  afterwards  at  Prairie 
du  Chien,  where  he  resided  when  elected  the  first  judge  of 
the  sixth  circuit  in  1850.  He  served  as  circuit  judge  six. 
years  and  was  a  member  of  the  Supreme  Court  until  the  or- 


26  The  Story  of  a  Great  Court 

ganization  of  the  separate  tribunal.  He  died  June  27,  1863, 
at  Menekaunee,  Oconto  County,  Wisconsin,  at  the  early  age 
of  forty  seven. 

Judge  Pinney  says  of  him  :10 

"He  was  a  man  of  good  natural  talents,  and  discharged  the 
duties  of  his  office  with  commendable  ability,  and  his  judicial 
integrity  was  unquestioned." 


103  Pinney's  Wis.  Reports,  p.  619. 


MORTIMER    MELVILLE    JACKSON. 


The  Work  of  the  first  Supreme  Court  27 


CHAPTER  III 

THE  WORK  OF  THE  FIRST  SUPREME  COURT 

The  business  transacted  by  this  early  Court  during  its 
brief  existence  of  five  years  was  not  great  in  volume  as  meas- 
ured by  present  day  standards.  Its  decisions  fill  less  than 
two  volumes  of  Pinney's  reports.  While  the  population  of 
the  state  had  increased  ten  fold  during  the  decade  from  1840 
to  1850,  it  was  still  but  a  trifle  more  than  300,000  in  1850. 
Moreover  it  was  very  largely  a  rural  and  scattered  popula- 
tion. Milwaukee  had  but  20,000  inhabitants  and  Racine  but 
5,000  and  these  were  the  leading  cities.  Manufactures  had 
hardly  begun  to  develop ;  business  enterprises  were  small  in 
extent  and  limited  in  capital.  Only  ten  miles  of  railroad  had 
been  laid  in  the  state :  it  was  still  a  pioneer  commonwealth, 
whose  scanty  population  was  busily  engaged  in  subjugating 
the  prairies  and  the  forests  of  a  vast  empire  and  had  neither 
time  nor  inclination  for  extensive  litigation.  Such  litigation 
as  arose  generally  involved  small  sums  and  litigants  were 
apt  to  rest  content  with  the  result  in  the  circuit  court,  for 
the  trip  to  Madison  was  no  trifling  matter  in  those  days  of 
no  railroads.  A  large  proportion  of  the  cases  which  reached 
the  Supreme  Court  involved  simply  questions  of  pleading  or 
procedure  and  this  was  natural,  for  the  state  was  new,  the 
lawyers  young  and  frequently  inexperienced  and  the  statutes 
recently  revised.  Although  the  code  had  not  yet  come  with 
its  multitude  of  new  questions  and  the  practice  was  still 
governed  by  common  law  rules,  there  was  no  lack  of  ques- 
tions to  be  settled,  arising  either  from  lack  of  textbooks, 


28  The  Story  of  a  Great  Court 

from  new  conditions  or  from  changes  in  the  practice  made 
by  the  revised  statutes  of  1849.  Tne  decisions  upon  such 
questions  are  of  little  moment  now  ;  the  adoption  of  the  Code 
of  Procedure  in  1856  effectually  deprived  most  of  them  of' 
any  permanent  value  and  there  seems  no  occasion  to  spend 
time  upon  them. 

There  were,  however,  some  cases  involving  important 
questions  of  substantive  law,  the  decisions  in  which  have  had 
permanent  influence  on  the  jurisprudence  of  the  state.  Per- 
haps the  most  important  of  these  cases  was  Newcomb  v. 
Smith,  2  Pinney,  131,  which  involved  the  question  of  the  con- 
stitutionality of  the  milldam  law  passed  by  the  territorial  leg- 
islature January  13,  1840.  This  act  provided  in  substance 
that  water  mills  and  dams  might  be  erected  and  maintained 
by  a  riparian  proprietor  upon  and  across  any  stream  not 
navigable,  provided  no  injury  should  be  done  to  other  law- 
fully existing  mills  on  the  same  stream  and  provided,  further, 
that  the  height  at  which  the  water  might  be  maintained  and 
the  length  of  time  it  might  be  so  maintained  each  year 
should  be  subject  to  regulation  by  the  verdict  of  a  jury. 
There  were  further  provisions  prohibiting  any  action  at  com- 
mon law  by  any  person  whose  land  should  be  overflowed,  but 
providing  that  he  might  obtain  compensation  by  action  in  the 
district  court  of  the  proper  county. 

The  law  was  attacked  on  two  grounds,  first,  because  it 
took  away  the  common  law  right  of  action  against  the  mill- 
owner,  and  thus  violated  that  provision  of  the  ordinance  of 
1787  for  the  government  of  the  Northwest  Territory  which 
guaranteed  to  the  inhabitants  the  right  to  maintain  "judicial 
proceedings  according  to  the  course  of  the  common  law," 
and,  second,  because  it  authorized  the  taking  of  property  for 
a  private  use.  Both  contentions  were  overruled  by  a  bare 
majority  of  the  Court,  Judge  Hubbell  writing  the  opinion, 


The  Work  of  the  first  Supreme  Court  29 

while  Judge  Larrabee  filed  a  long  and  able  dissenting  opin- 
ion, in  which  Chief  Justice  Stow  concurred.  The  question 
was  a  new  and  serious  one  in  Wisconsin.  The  state  abounded 
in  waterpowers;  the  railroad  had  not  yet  come,  coal  was 
practically  unknown,  and  the  use  of  the  stationary  steam  en- 
gine confined  to  the  large  towns,  transportation  was  diffi- 
cult, lumber  for  housebuilding  had  to  be  sawed  out  of  timber 
cut  in  the  immediate  vicinity  and  grain  had  to  be  milled  at 
the  neighboring  grist  mill.  Under  these  conditions  multi- 
tudes of  small  sawmills  and  gristmills  operated  by  water 
power  and  serving  a  small  area  for  toll  had  sprung  up  and 
their  continued  and  unfettered  existence  seemed  an  absolute 
necessity  if  the  growth  of  the  state  was  to  continue.  These 
considerations  were  doubtless  weighty  with  the  Court  and 
it  was  decided  that  the  use  was  a  public  and  not  a  private 
use.  Had  the  test  come  a  few  years  later  the  decision  would 
in  all  probability  have  been  the  other  way,  but  the  decision 
was  made ;  valuable  interests  grew  up  under  it  and  when  the 
question  came  before  the  separate  Supreme  Court  in  i860  the 
early  decision  was  sustained  and  followed  on  the  ground  of 
stare  decisis,  although  it  seems  quite  obvious  from  the  opin- 
ion that  the  Court  would  have  held  the  act  was  invalid  had 
the  question  been  a  new  one.1 

The  act  itself  was  copied  almost  verbatim  from  an  early 
Massachusetts  law  which  had  been  sustained  by  the  courts 
of  that  state,  not  on  the  ground,  however,  that  there  was  a 
taking  of  land  for  public  use,  but  on  the  ground  that  there 
was  no  taking  of  property  at  all  and  consequently  no  exer- 
cise of  the  right  of  eminent  domain.  Right  or  wrong,  how- 
ever, the  decision  has  been  followed  and  settled  the  law  of 
the  state  upon  the  subject. 


1  Fisher  v.  Horicon,  I.  &  M.  Co.,  10  Wis.  *351;  Newell  v.  Smith, 
15  Wis.  *101. 


30  The  Story  of  a  Great  Court 

Another  case  where  a  very  important  question  was  pres- 
ented was  the  case  of  State  ex  rcl.  Resley  v.  Farwcll,  Gov- 
ernor, etc.,  3  Pinney,  393,  where  application  was  made  to 
the  court  for  the  issuance  of  a  writ  of  mandamus  against 
the  Governor  in  his  official  capacity.  In  this  case  it  was 
held  that  the  clause  of  section  3,  Article  VII  of  the  state 
constitution  providing  that  the  Supreme  Court  should  "have 
power  to  issue  writs  of  habeas  corpus,  mandamus,  injunc- 
tion, quo  warranto,  certiorari  and  other  original  and  rem- 
edial writs"  did  not  confer  any  original  jurisdiction  upon 
the  court,  but  was  only  intended  to  enable  it  to  exercise  the 
powers  otherwise  conferred.  The  opinion  of  the  court  was 
written  by  Judge  Howe,  but  Judge  Larrabee  dissented. 

Happily  for  the  state  this  narrow  construction  of  the 
clause  was  promptly  repudiated  by  the  separate  supreme 
court  at  its  very  first  term  in  the  leading  case  of  Attorney 
General  v.  Blossom,  1  Wis.  318,  where  it  was  held  that  this 
clause  conferred  original  jurisdiction  upon  the  court  for  the 
purpose  of  preserving  the  liberties  of  the  people  and  the 
rights  of  its  citizens.  The  importance  of  this  great  prin- 
ciple first  clearly  appeared  and  its  limits  were  accurately 
defined  in  the  great  case  of  Attorney  General  v.  The  Rail- 
way Companies,  35  Wis.  425,  where  the  court  speaking  by 
Chief  Justice  Ryan  laid  down  the  principle  that  the  clause 
was  designed  to  give  the  court  original  jurisdiction  of  all 
judicial  questions  affecting  the  sovereignty  of  the  state,  its 
franchises  and  prerogatives  or  the  liberties  of  its  people. 
This  latter  decision  has  been  followed  ever  since  its  rendi- 
tion and  constitutes  a  landmark  in  our  jurisprudence. 

Other  cases  of  lesser  public  importance  may  be  briefly 
noticed.  In  Getty  v.  Ronntree,  3  Pinney,  379,  the  doctrine 
of   implied   warranty   of   fitness    on   the    furnishing  of   an 


The  Work  of  the  first  Supreme  Court  31 

article  for  a  specific  purpose  without  opportunity  of  testing 
it,  is  laid  down;  in  Hasleton  v.  Putnam,  3  Id.  107,  the 
effect  of  a  parol  license  to  enter  upon  and  improve  land  is 
considered  and  decided;  in  Kellogg  v.  Larkin,  3  Id.  123, 
the  validity  of  contracts  in  partial  restraint  of  trade  is 
affirmed  and  the  limits  of  such  contracts  laid  down;  in 
Clark  v.  Drake,  3  Id.  228,  the  principle  that  equity  will  not 
take  jurisdiction  of  a  case  for  the  purpose  of  enforcing  a 
forfeiture  but  will  leave  the  party  to  his  remedy  at  law  is 
definitely  approved;  in  M.  &  M.  R.  R.  Co.  v.  Eble,  3  Id. 
334,  it  is  held  that  before  lands  can  be  permanently  occupied 
by  a  railroad  company  under  its  power  of  eminent  domain 
the  compensation  must  be  actually  paid  or  tendered;  and 
in  Martineau  v.  McCollum,  3  Id.  455,  it  is  held  that  the 
transfer  of  a  negotiable  note  secured  by  mortgage  to  a  bona 
Me  holder  before  due  carries  with  it  the  mortgage  security 
and  precludes  defenses  which  would  render  the  contract 
void  as  between  the  original  parties.  The  doctrines  laid 
down  in  all  of  these  cases  have  been  substantially  followed 
in  later  decisions  and  thus  they  have  passed  into  the  great 
body  of  our  jurisprudence. 

Attention  must  now  be  given,  however,  to  the  separate 
supreme  court  which  was  soon  to  supersede  this  temporary 
tribunal  and  become  the  permanent  head  of  the  judicial  sys- 
tem of  the  state. 


32  The  Story  of  a  Great  Court 

CHAPTER  IV 

THE   JUDICIAL   ELECTION   OF    1852  AND  THE  NEW   COURT 

The  five  years  during  which,  under  the  constitution,  the 
circuit  judges  were  to  act  as  judges  of  the  supreme  court 
expired  in  1853  and  the  legislature  by  chapter  395  of  the 
laws  of  1852  created  a  separate  supreme  court,  to  be  com- 
posed of  a  chief  justice  and  two  associate  justices  to  be 
elected  on  the  last  Monday  of  September,  1852,  and  as- 
sume their  duties  June  I,  1853.  The  salary  was  fixed  at 
two  thousand  dollars  per  annum. 

The  control  of  this  new  supreme  tribunal  was  a  prize 
worth  struggling  for.  The  Democratic  party  was  still  in 
the  majority,  as  is  proven  by  the  fact  that  Pierce  carried 
the  state  by  a  decisive  majority  in  the  presidential  election 
of  November,  1852,  but  the  party  was  torn  by  factions,  both 
state  and  national.  The  free  soil  movement  had  made  in- 
roads in  the  ranks  of  both  parties  and  the  domination  of 
the  Democratic  party  by  the  Southern  pro-slavery  wing  was 
bitterly  resented  by  many  Democrats.  Some  of  the  party's 
strongest  and  ablest  men  had  openly  espoused  the  anti- 
slavery  cause  and  called  themselves  free  soilers.  On  the 
other  hand  the  Whig  party  was  in  a  still  worse  condition; 
eminently  respectable  and  intellectual  though  it  was,  it  was 
not  a  party  of  action  or  achievement  and  it  was  fast  ap- 
proaching dissolution  and  preparing  the  way  for  an  en- 
thusiastic and  virile  new  party  of  action  and  progress, 
whose  leaders  were  to  be  drawn  from  both  of  the  old  parties 
and  whose  platform  was  to  be  based  upon  a  great  moral 


The  Judicial  Election  of  1 852  33 

issue  appealing  to  the  hearts  of  the  masses,  namely,  the 
issue  of  freedom  and  equal  rights. 

None  saw  the  future,  however,  and  the  Democrats,  con- 
fident of  their  power,  determined  to  sweep  the  entire  bench 
and  called  a  convention  to  meet  at  Madison,  August  4,  1852, 
which  was  attended  by  more  than  eighty  delegates. 

The  chairman  was  Hon.  Charles  Dunn,  who  had  been 
Chief  Justice  of  the  Supreme  Court  of  the  territory  of  Wis- 
consin from  the  time  of  the  organization  of  that  Court 
until  the  state  judiciary  was  organized  in  January,  1849. 
Judge  Dunn  was  a  very  prominent  and  interesting  figure  in 
early  Wisconsin  history.  He  was  born  of  a  good  family  in 
Bullit  County,  Kentucky,  from  which  state  he  removed  to 
Illinois,  where  he  was  admitted  to  the  bar  in  1820  at  the 
age  of  twenty-one.  Here  he  practiced  law  for  some  years, 
holding  some  minor  offices,  took  an  active  part  in  the 
Blackhawk  war  as  captain  of  a  company,  was  severely 
wounded  at  an  engagement  in  the  town  of  Dunn,  Dane 
county  during  that  war,  and  was  appointed  Chief  Justice 
of  the  territorial  Court  of  Wisconsin  by  President  Jackson 
in  the  spring  of  1836.  He  was  a  member  of  the  second 
constitutional  convention  in  1848  and  was  chairman  of  the 
judiciary  committee  of  that  body. 

In  this  convention  he  took  an  active  and  important  part. 
He  proposed  and  strongly  urged  an  amendment  to  the  suf- 
frage clause  of  the  constitution  limiting  the  right  to  white, 
male  citizens  of  the  United  States  who  had  resided  in  the 
state  one  year  next  preceding  an  election  or  who  resided  in 
the  state  at  the  time  of  the  adoption  of  the  constitution. 
In  supporting  this  limitation  he  opposed  the  overwhelming 
sentiment  of  his  party  and  it  was  rejected.  His  support  of 
this  measure  was  afterwards  used  against  him  as  we  shall 
3 


34  The    Story  of  a  Great  Court 

see.  He  is  said  to  have  been  the  author  of  that  important 
clause  of  the  constitution  which  reserves  to  the  legislature 
the  power  to  alter  or  repeal  the  charter  of  any  corporation. 
He  was  a  resident  of  La  Fayette  County  and  lived  at  the 
historic  village  of  Belmont,  the  first  territorial  capitol,  to 
which  place  he  retired  and  practiced  his  profession  after 
the  formation  of  the  state.  He  was  a  lawyer  of  ability  and 
unquestioned  integrity,  a  gentleman  of  the  old  school,  with 
a  distinct  southern  tinge  and  commanded  the  confidence  and 
esteem  of  the  people.  He  was  elected  to  the  state  senate 
from  La  Fayette  County  and  served  as  chairman  of  the 
judiciary  committee  of  that  body  during  the  years  1852  and 
1853.  He  was  a  candidate  for  the  nomination  for  United 
States  senator  before  the  Democratic  caucus  of  the  first 
state  legislature,  but  was  defeated  by  General  Dodge.  In 
1858  he  was  an  unsuccessful  candidate  for  Congress  against 
C.  C.  Washburn  and  in  1868  reluctantly  accepted  the  nom- 
ination for  Chief  Justice  by  the  Democratic  convention 
against  Judge  Dixon,  but  was  defeated  in  both  instances. 
He  died  April  7,  1872,  universally  respected  and  mourned. 

His  services  to  the  territory  and  the  state  deserve  larger 
and  more  appreciative  recognition  than  can  here  be  given, 
but  I  cannot  forbear  quoting  a  part  of  the  eloquent  tribute 
paid  to  him  by  Edward  G.  Ryan  on  the  presentation  to  the 
Supreme  Court  of  the  resolutions  adopted  by  the  bar  of  the 
state  soon  after  Judge  Dunn's  death.1 

Mr.  Ryan  said,  among  other  things: 

"It  was  Judge  Dunn's  lot  in  life  to  fill  many  stations,  pro- 
fessional and  lay,  executive,  legislative  and  judicial.  So  far  as 
I  know  or  have  been  able  to  learn,  these  rather  sought  him 
than  he  them.  He  certainly  intruded  himself  into  none  of  them. 
There  was  a  modesty  in  the  man  which  was  rare  in  his  gen- 

i30   Wis.   33. 


CHARLES   DUNN. 


The  Judicial  Election  of  1852  35 

eration.  I  think  that  his  own  estimate  of  his  own  powers  was 
below,  not  above  the  estimate  of  all  who  knew  him  well.  And 
he  was  a  thoroughly  earnest  man.  He  filled  all  his  offices  with 
singular  fidelity  and  zeal;  as  if  each  in  turn  were  the  chief  end 
of  his  life.  To  say  that  he  filled  them  with  ability  would  be 
faint  praise.  He  did  not  achieve  success  in  them  by  just  escap- 
ing failure.  He  was  a  faithful  officer;  his  offices  were  never  be- 
low him,  but  he  was  always  above  them.  None  of  them  gave 
opportunity  of  showing  all  that  he  was,  of  calling  out  all  of  the 
strength  that  was  in  him.  They  were  all  respectable,  some  of 
them  were  high.  But  his  intellect,  his  culture,  his  general  capa- 
city towered  far  above  every  station  he  ever  occupied.  We 
mourn  for  the  untried  powers  which  die  out  of  the  world  with 
the  young.  Let  us  mourn  for  the  world  when  it  suffers  great 
powers  to  die,  unused  in  its  service  with  the  old. 

"In  his  life  Judge  Dunn  saw  many  men  around  him  reach 
stations  which  he  did  not  reach.  Some  of  them  rose  worthily 
and  usefully.  Some  rose  only  to  show  their  own  unfitness. 
With  like  pliancy  or  like  artifice  he  too  might  have  risen  where 
his  inferiors  rose.  But  he  was  above  all  these.  And  standing 
below  on  the  solid  level  of  his  own  life  and  character,  he  ranked 
the  superior  of  most  and  the  equal  of  any  of  his  contemporaries. 
He  might  have  ennobled  many  positions  filled  by  them;  none  of 
them  could  have  ennobled  him. 

"For  truly,  he  was  a  great  man  in  private  station.  While  his 
intellect  was  calm,  it  was  solid;  while  it  was  not  brilliant  it 
was  comprehensive  and  far  reaching.  It  was  deliberate,  dis- 
criminating, clear,  wise  and  just.  I  doubt  if  he  left  among  us 
his  intellectual  equal.  His  character  was  solid,  strong  and  reso- 
lute, but  not  stern  or  harsh.  His  stronger  qualities  were  softened 
by  great  sense  of  humor  and  great  kindness  of  heart.  His  tem- 
per was  singularly  genial.  He  was  generous  and  trustful  to  a 
fault.  His  foibles — for  like  all  born  of  woman — he  had  them, 
all  arose  from  his  genial  character,  the  warmth  of  his  heart  and 
the  kindness  of  his  temper.  Strong  in  character  among  the 
strongest;  he  was  in  carriage  and  manner  among  the  gentlest, 
eminently  modest  and  unobtrusive  in  demeanor.  His  culture 
was  of  a  high  order,  in  and  out  of  his  profession;  like  himself 
useful  and  thorough,  not  superficial  or  showy.  His  knowledge  of 
men  and  things,  of  the  world  and  its  ways  was  profound.  There 
were  singularly  combined  in  him  the  sagacity  of  a  man  of  the 


36  The  Story  of  a  Great  Court 

world,  and  the  personal  simplicity  of  a  child.  He  had  a  deep 
sense  of  the  duties  of  life.  In  all  its  relations,  in  all  its  chances 
and  vicissitudes  he  was  always  true  to  his  own  views  of  duty. 
His  sense  of  self  respect  was  unerring  and  never  deserted,  never 
betrayed  him.  It  is  little  to  say  that  he  was  the  soul  of  honor; 
he  could  be  nothing  that  is  false  or  mean.  He  did  not  know 
what  treason  was.  That  which  he  believed,  that  which  he  loved, 
that  to  which  he  gave  his  faith  were  part  of  himself.  He  could 
not  desert  faith,  or  friend,  or  duty,  without  betraying  his  own 
life.     Dishonor  in  him  would  have  been  moral  suicide. 

"And  this  perhaps  is  the  key  to  much  of  his  life.  He  could 
not  rise  by  lessening  himself.  He  could  not  throw  overboard  a 
principle,  or  a  duty,  or  a  friendship.  He  could  not  equivocate 
with  others.  In  matters  of  duty  he  could  break  but  he  could 
not  bend.  In  matters  of  principle  he  could  never  tamper  with 
the  coward  lie  of  expediency.  It  were  nothing  to  call  him  a 
brave  man.  Some  are  brave  physically,  some  are  brave  morally, 
some  are  brave  occasionally.  These  were  matters  of  accident 
sometimes,  of  habit  often.  But  Judge  Dunn  did  not  comprehend 
what  fear  is,  physical  or  moral.  His  heart  was  too  great  for  any 
cowardice.  Courage  in  him  was  not  an  instinct;  it  was  a  prin- 
ciple, a  part  of  the  character  of  the  man.  He  might  fail,  but  he 
could  not  be  unfaithful.  There  was  in  his  soul  a  pride  which 
could  not  stoop  to  falsehood.  Fidelity  to  his  own  sense  of  right 
was  the  breath  of  his  life.  He  belonged  to  a  school  of  men  which 
has  nearly  passed  away.  He  belonged  to  a  school  of  politics, 
which  seems  to  be  in  the  way  of  following  the  men  who  made 
it  illustrious.  More  is  the  pity.  Hen  pietas,  heu  prisca  fides. 
It  is  not  the  fashion,  but  I  mourn  for  both  as  an  inestimable 
loss  to  the  country. 

"When  the  popular  current  turned  against  his  school  of  politics 
many  vacillated,  many  grew  lukewarm,  many  abandoned  it  in 
the  day  of  trial,  and  rose  by  the  act.  Not  so  he.  His  political 
faith  was  religious  truth  to  him.  He  would  as  soon  have  denied 
his  God.  He  never  wavered.  He  never  temporized.  What  was 
it  to  him  that  all  men  seemed  turned  against  the  ancient  faith 
of  his  life?  What,  that  his  old  and  honored  party  was  pro- 
scribed and  overwhelmed?  Faithful  among  the  faithless  found, 
no  shadow  of  turning  fell  upon  his  life." 

Such  was  the  man  who  was  called  to  preside  over  the 
deliberations  of  the  Democratic  convention. 


The  Judicial  Election  oM  852  37 

The  speeches  by  the  leaders  in  this  convention,  which  are 
quite  fully  reported  in  the  Milwaukee  Weekly  Wisconsin  of 
August  ii,  1852,  are  interesting  as  showing  the  prevailing 
sentiment  in  the  dominant  party  on  the  question  of  party 
nominations  to  the  bench. 

Upon  taking  the  chair  Judge  Dunn  made  a  short  speech 
in  which  he  said  with  characteristic  candor  and  courage 
that  party  nomination  of  judges  was  an  experiment  the 
success  of  which  depended  entirely  on  the  fitness  of  the  men 
nominated,  and  that  he  should  feel  himself  at  perfect  liberty 
to  disregard  the  choice  of  the  convention  if  it  did  not  nom- 
inate as  good  men  as  might  be  nominated  thereafter  or  as 
might  be  called  out  by  the  people.  Following  this  there 
came  a  discussion  participated  in  by  several  prominent  del- 
egates upon  the  general  subject  of  the  propriety  of  party 
nominations.  Mr.  D.  A.  J.  Upham  of  Milwaukee  said  that 
he  favored  such  nominations  but  admitted  that  many  Dem- 
ocrats would  repudiate  them  if  anything  but  an  unexcep- 
tionable ticket  was  nominated;  Mr.  Hobart  of  Sheboygan 
pledged  his  county  for  the  ticket  "whoever  were  the  nom- 
inees" ;  Mr.  Delany  of  Columbia  County  thought  that  every 
judicial  election  in  the  state  should  be  conducted  on  party 
principles ;  Mr.  S.  P.  Coon  (who  had  recently  been  attorney 
general  of  the  state)  thought  that  strict  party  men  should 
be  nominated;  he  did  not  think  that  a  Whig  could  arrive 
at  just  conclusions  on  political  subjects,  and  being  wrong 
on  these  subjects  he  should  be  led  to  distrust  the  judgment 
of  a  Whig  upon  the  bench ;  Mr.  George  B.  Smith  of  Madi- 
son thought  that  the  convention  should  nominate  upright 
men  and  sound  Democrats  who  had  never  swerved  from 
the  straight  line  of  party  duty  or  allegiance  to  Democratic 
principles ;  if  they  nominated  any  other  kind  of  a  man  he 
should  be  defeated;  Mr.  M.  M.  Cothren  of  Mineral  Point 


38  The  Story  of  a  Great  Court 

gladly  embraced  the  opportunity  to  declare  that  this  system 
of  nominating  candidates  for  the  bench  was  entirely  in  ac- 
cordance with  his  feelings  and  with  the  wishes  of  his  con- 
stituents. 

The  sentiment  being  overwhelmingly  in  favor  of  party 
nominations  the  convention  proceeded  to  its  work.  Two 
of  the  circuit  judges  of  the  state  were  candidates,  either 
actively  or  passively,  for  the  nomination  for  chief  justice, 
Judge  Hubbell  of  the  second  circuit  and  Judge  Larrabee  of 
the  third  circuit,  and  the  convention  adopted  a  preliminary 
resolution  declaring  that  in  case  any  circuit  judge  should  be 
nominated  he  should  resign  his  office  within  five  days  after 
notice  of  his  nomination  or  be  deemed  to  have  declined. 
Milwaukee  had  two  candidates  for  places  on  the  ticket, 
Judge  Hubbell  for  chief  justice  and  Abram  D.  Smith  for 
associate  justice.  Mr.  Smith  had  been  the  regular  Demo- 
cratic nominee  for  circuit  judge  at  the  judicial  election  in 
1848  and  had  been  defeated  by  Judge  Hubbell,  who  had 
run  as  an  independent.  The  rivalry  between  the  two  men 
and  their  supporters  was  keen  and  somewhat  bitter ;  both 
could  not  be  nominated,  but  one  was  quite  certain  to  be, 
not  only  because  of  Milwaukee's  importance  as  the  com- 
mercial metropolis  of  the  state,  but  also  because  of  its  re- 
liable Democratic  majority. 

Mr.  Smith's  friends  seem  to  have  been  the  better  politi- 
cians, for  they  succeeded  in  having  nominations  for  as- 
sociate justices  made  before  the  nomination  for  chief  justice. 
This  change  in  the  natural  order  of  business  resulted  in  the 
nominations  of  Mr.  Smith  of  Milwaukee  and  Samuel  Craw- 
ford of  Mineral  Point  as  associate  justices  and  undoubtedly 
prevented  Judge  Hubbell's  nomination.  Judge  Larrabee 
of  the  third  circuit  was  then  nominated  for  chief  justice  and 


The  Judicial  Election  of  1 852  39 

the  convention  adjourned.  The  convention  struggles  left 
much  hard  feeling  among  the  Democrats,  especially  among 
Judge  Hubbell's  friends.  The  nomination  of  Judge  Lar- 
rabee  was  especially  disliked  and  that  element  of  the  party 
which  upon  principle  favored  independent  candidacies  re- 
ceived large  additions  from  those  who  were  dissatisfied  with 
the  result  of  the  convention.  A  call  for  an  independent 
convention  was  soon  circulated  at  Milwaukee  and  received 
many  hundred  signatures.  The  convention  so  called  met  at 
Madison,  September  ist,  and  was  largely  attended.  In  a 
lurid  editorial  contained  in  the  Madison  Argus  and  Dem- 
ocrat of  September  ist  (then  conducted  by  Beriah  Brown 
and  S.  D.  Carpenter)  it  was  thus  characterized : 

"Whiggery  in  all  its  phases,  disappointed  Democrats,  defeated 
candidates,  sore  heads  and  sore  eyes,  whiskey  and  piety  mingling 
like  the  conglomerate  pillars  of  which  we  read,  making  common 
cause  (but  not  with  common  object)  some  for  revenge,  some  for 
plunder,  some  to  elevate  their  friends  but  more  to  destroy  the 
organization  of  the  Democratic  party,  have  met  here  from  all 
sections  of  the  state,  assuming  to  themselves  the  high  prerogative 
of  revising  the  action  of  the  direct  representatives  of  the  people 
who  assembled  on  the  fourth  of  August." 

Better  proof  than  this  that  the  danger  of  the  situation  was 
appreciated  by  the  Democratic  leaders  could  hardly  be 
wished  for.  The  nomination  of  Judge  Whiton  for  chief 
justice  by  this  convention  was  a  foregone  conclusion  ;  he  had 
fully  demonstrated  his  fitness  for  the  position  by  his  work 
on  the  former  bench  and  he  was  universally  respected  and 
admired.  As  associate  justices  the  convention  nominated 
Marshall  M.  Strong  of  Racine,  a  very  able  lawyer  who  had 
been  a  Democrat  but  had  become  a  Freesoiler  and  Abolition- 
ist, and  James  H.  Knowlton  of  La  Fayette  County,  a  Dem- 
ocrat who  had  received  many  votes  in  the  Democratic  con- 
vention for  associate  justice. 


40  The  Story  of  a  Great  Court 

On  August  ii,  1852,  Judge  Larrabee  had  sent  to  Gov- 
ernor Farwell  his  resignation  as  circuit  judge,  pursuant  to 
the  resolution  of  the  Democratic  convention,  which,  how- 
ever, was  not  to  take  effect  until  February  1,  1853.  The 
good  faith  or  effectiveness  of  this  resignation  was  ques- 
tioned by  the  Whigs,  but  the  campaign  proceeded.  The 
fight  was  bitter  and  largely  personal ;  the  Democratic  papers 
were  full  of  appeals  to  Democrats  to  vote  the  straight  party 
ticket,  the  Whigs  centered  their  strongest  efforts  on  the 
election  of  Whiton  and  the  result  was  that  Whiton,  Smith 
and  Crawford  were  elected  and  all  by  small  majorities, 
though  the  state  was  heavily  Democratic.  Thus  the  first 
attempt  to  control  the  new  Supreme  bench  by  party  nom- 
inations resulted  in  practical  failure  and  the  principle  of 
independent  candidacies  received  a  substantial  endorsement. 

Under  the  terms  of  the  law  creating  the  new  Court  the 
term  of  the  chief  justice  was  fixed  at  four  years,  and  the 
terms  of  the  associates  at  two  and  six  years  respectively,  to 
be  determined  by  lot.  The  lots  were  drawn,  the  short  term 
fell  to  Judge  Crawford  and  the  new  court  entered  upon  its 
duties  in  June,  1853. 

A  sketch  of  Judge  Whiton's  career  prior  to  his  elevation 
to  the  circuit  bench  has  already  been  given  and  his  asso- 
ciates upon  the  new  bench  are  now  to  be  noticed. 

Abram  Daniel  Smith  was  a  man  of  strong  and  original 
mind,  of  imperious  will  and  tireless  industry  and  withal  an 
able  lawyer  and  a  voluminous  and  forceful  writer.  Of  his 
early  life  little  has  been  preserved  and  the  exact  date  of  his 
birth  seems  to  be  unknown.  In  General  Edwin  E.  Bryant's 
sketch  of  his  life  published  in  the  "Green  Bag"  of  March, 
1897,  it  is  said  that  he  was  born  in  Lowville,  Lewis  County, 
New  York ;  he  seems  to  have  studied  law  at  Sacketts  Har- 


The  Judicial  Election  of  1852  41 

bor  in  that  state,  but  nothing  is  known  as  to  his  early  edu- 
cation. It  seems  probable  that  he  practiced  law  in  New 
York  before  coming  to  Wisconsin,  as  the  Hon.  Harlow  S. 
Orton  said  July  25,  1865,  in  his  remarks  before  the  Supreme 
Court  upon  the  death  of  Judge  Smith  that  he  first  met  him 
in  the  state  of  New  York  over  thirty  years  before  when 
they  were  both  young.  Just  when  he  left  New  York  is  not 
known  but  he  came  to  Wisconsin  in  the  year  1842,  having 
previously  spent  some  years  at  Cleveland,  Ohio,  and  began 
to  practice  at  Milwaukee,  where  his  ability,  his  earnestness 
and  his  eloquence  at  once  brought  him  success.  In  1847  he 
was  a  candidate  for  a  seat  in  the  second  constitutional  con- 
vention but  was  defeated  by  Rufus  King.  In  1848,  upon 
the  organization  of  the  state,  he  was  the  regular  Democratic 
candidate  for  circuit  judge  of  the  second  circuit,  then  com- 
prising Milwaukee,  Waukesha,  Jefferson  and  Dane  Counties, 
but  was  defeated  by  a  few  votes  by  Levi  Hubbell,  who  ran  as 
an  independent  Democratic  candidate.  His  defeat  is  thus 
explained  by  General  Bryant: 

"Before  coming  to  Milwaukee  he  was  a  justice  of  the  peace  in 
Cleveland,  Ohio.  During  a  scare  in  regard  to  the  smallpox  a 
person  afflicted  with  that  disease  had  been  placed  in  an  isolated 
building  and  then  left  alone,  no  one  being  allowed  to  visit  him. 
A  humane  and  high  spirited  physician  in  violation  of  municipal 
regulations  broke  into  the  building  and  ministered  to  the  sick 
man.  For  this  humane  but  lawless  act  he  was  brought  before 
Justice  Smith  who  imposed  a  heavy  fine.  In  the  office  of  this 
young  doctor  was  a  young  Irish  student,  William  H.  Fox,  who 
afterwards  became  an  excellent  and  influential  physician  in 
Dane  County.  When  Mr.  Smith  became  a  candidate  for  circuit 
judge,  Dr.  Fox  took  the  field  against  him,  having  stored  away  a 
grudge  for  his  severity  to  the  good  Samaritan,  his  medical 
teacher.  By  his  activity  in  Dane  County  the  scales  were  turned 
and  Smith  was  defeated  by  a  few  votes,  and  Dr.  Fox  declared 
the  account  settled."   2 


2  Green  Bag,  Vol.   9,  p.  111. 


42  The  Story  of  a  Great  Court 

In  1852  however,  when  the  separate  Supreme  Court  came 
to  be  elected,  Judge  Smith  turned  the  tables  and  triumphed 
over  Judge  Hubbell,  as  we  have  already  seen.  His  com- 
manding influence  upon  that  bench,  especially  in  the  litiga- 
tion over  the  fugitive  slave  law,  will  clearly  appear  as  this 
history  proceeds  and  need  not  be  enlarged  upon  now.  He 
became  the  reporter  of  the  Court  in  addition  to  his  other 
duties  and  reported  the  first  eleven  volumes  of  the  Wiscon- 
sin reports. 

Chief  Justice  Cole  paid  him  the  following  generous  tribute 
upon  the  presentation  of  resolutions  by  the  bar  after  his 
death  in  July,   1865  : 3 

"Judge  Smith  was  endowed  by  nature  with  a  singularly  original 
and  vigorous  mind,  which  had  been  invigorated  and  enriched  by 
much  reading  and  learning.  He  had  an  abiding  love  for  and 
devotion  to  the  great  principles  of  civil  liberty  and  natural  jus- 
tice, and  I  believe  it  was  the  strongest  desire  of  his  soul  that 
every  human  being,  however  degraded,  should  enjoy  his  natural 
rights.  And  if,  for  the  purpose  of  securing  these  rights  to  the 
downtrodden  and  oppressed,  Judge  Smith  ever  advanced  from 
the  bench  constitutional  views  which  some  deem  unsound,  it 
is  sufficient  to  say  that  the  great  mass  of  the  loyal  people  of  the 
country  have  adopted  his  views  in  regard  to  the  particular  law 
which  called  them  forth,  overlooking  his  errors,  if  he  fell  into 
any  and  freely  pardoning  something  to  the  spirit  of  liberty  by 
which  he  was  actuated.  Furthermore,  he  was  fearless  and  in- 
dependent in  all  his  judgments,  following  no  authority  which 
did  not  seem  to  be  founded  on  principle  and  reason.  All  his 
opinions  were  well  written,  and  will  compare  favorably  with 
those  of  any  contemporary  judge  of  our  sister  states,  while  some 
of  them  are  marked  by  remarkable  ability  and  force  of  reason- 
ing." 

Judge  Smith  was  not  re-elected  upon  the  expiration  of  his 
term  in  1859  for  reasons  which  will  appear  later.  He  re- 
turned to  the  practise  in  Milwaukee  and  for  a  time  became 

3  18  Wis.  18. 


ABRAM  DANIEL  SMITH. 


The  Judicial  Election  of  1852  43 

an  editorial  writer  upon  the  Free  Democrat.  He  was  ap- 
pointed to  a  position  in  the  government  revenue  service  in 
South  Carolina  during  the  war  and  spent  most  of  his  time 
there.  His  health  became  impaired  by  his  labors  in  this 
position  and  he  sailed  by  steamer  for  New  York  late  in  May 
or  early  in  June,  1865.  He  sank  during  the  trip  and  died 
at  or  about  the  time  of  the  arrival  of  the  steamer  at  New 
York  on  the  third  of  June ;  his  remains  were  forwarded  to 
Milwaukee  and  were  followed  to  the  grave  by  a  multitude 
of  sorrowing  friends,  June  11,  1865. 

The  work  of  Judge  Samuel  Crawford  upon  the  Supreme 
bench  gave  ample  evidence  of  his  judicial  abilities,  but  his 
term  was  too  short  to  admit  of  any  complete  demonstration 
of  them.  His  was  fully  as  picturesque  a  figure  as  that  of  his 
colleague,  Judge  Smith,  but  in  a  different  way. 

General  Bryant  in  his  "Green  Bag"  sketches  4  gives  the 
following  outlines  of  his  life : 

"Samuel  Crawford  was  born  in  Ballibay,  County  Monaghan, 
Ireland,  April  11,  1820.  He  was  the  fourth  son  of  John  Craw- 
ford, a  wholesale  linen  merchant,  and  was  given  an  excellent 
academic  education.  He  came  to  the  United  States  in  1840  and 
studied  law  at  Warwick,  Orange  County,  New  York.  He  came 
to  Galena  in  1841  and  there  continued  the  study  of  the  law 
with  J.  M.  Douglass,  then  a  prominent  lawyer.  He  was  admitted 
to  the  bar  in  1844  and  began  to  practice  in  a  smart  town  of 
mushroom  growth  which  bore  the  literal  name  of  New  Diggings 
(La  Fayette  County).  Here  were  then  a  number  of  able  law- 
yers, many  of  whom  afterwards  became  famous  in  the  state. 
*  *  *  Young  Crawford,  a  man  of  most  exemplary  habits  for 
that  region  of  wild  life,  where  was  plenty  of  money  and  little 
of  civilization,  soon  became  prominent.  He  distinguished  him- 
self in  several  important  trials,  and  his  fame  spread  throughout 
the  mining  region.  He  had  the  bearing  of  a  high  spirited, 
cultured  gentleman,  and  a  manner  which,  while  somewhat  im- 
perious  and   masterful,    was    fascinating,   and   he   soon   became 

*  Vol.  9,  Green  Bag.  p.  112. 


44  The  Story  of  a  Great  Court 

popular.  He  was  an  able  politician  and  a  graceful  and  eloquent 
speaker.  He  had  no  little  dramatic  power,  and  in  his  earlier 
days,  would  bear  a  part  in  a  play  with  great  adaptation.  The 
theatrical  troupes  in  those  days  thronged  to  New  Diggings,  sure 
of  good  houses  and  appreciative  audiences.  Crawford  sometimes 
took  a  part  and  when  Joe  Jefferson  was  there  in  his  youth,  the 
young  lawyer  gave  him  advice  as  to  his  acting  and  how  to 
reform  it. 

"After  a  few  months,  he  was  invited  by  Francis  J.  Dunn 
(brother  of  Judge  Charles  Dunn),  then  the  lawyer  of  largest 
practice  in  that  section  of  the  state,  to  join  him  in  partnership  at 
Mineral  Point.  This  firm  built  up.  a  large  business,  and  Craw- 
ford's fame  extended  no  less  as  a  lawyer  than  as  a  prominent 
advocate  of  the  principles  of  Democracy." 

His  defeat  in  his  campaign  for  re-election  in  1855  and  its 
causes  will  form  the  subject  of  a  separate  chapter.  Upon 
retiring  from  the  bench  he  practiced  law  for  a  time  at 
Madison  as  a  member  of  the  firm  of  Crawford,  Wakeley  & 
Tenney  and  then  removed  to  Mineral  Point  and  there  prac- 
ticed until  his  death.  In  1856  he  ran  for  Congress  against 
C.  C.  Washburn  and  in  1859  he  was  the  Democratic  candi- 
date for  Attorney  General,  but  was  defeated  in  both  in- 
stances. In  February,  1861,  while  engaged  in  the  trial  of 
a  case  he  was  taken  suddenly  ill  and  died  on  the  28th  of 
that  month  in  the  forty-first  year  of  his  age. 


SAMUEL  CRAWFORD. 


Some  Contemporaneous  Comments  45 


CHAPTER  V 

SOME     CONTEMPORANEOUS     COMMENTS     ON      MADISON,     THE 
CAPITOL  BUILDING,   AND  THE   EARLY    SUPREME  COURTS 

Accounts  of,  or  comments  upon,  persons  or  events  written 
by  a  contemporary,  with  no  thought  of  publication,  are  gen- 
erally interesting,  and  frequently  illuminating.  Accident 
has  thrown  in  my  way  a  number  of  letters  written  from 
Madison  by  a  Racine  lawyer  to  his  wife,  while  he  was  in 
attendance  upon  the  Supreme  Court  during  the  years  1850, 
1852,  and  1853,  and  as  these  letters  contain  a  number  of 
interesting  references  to  the  Court  and  to  current  events  at 
the  capitol,  I  shall  insert  extracts  from  them  here. 

The  man  who  wrote  the  letters  was  Moses  Bradford  But- 
terfield,  a  lawyer  in  active  practice  at  Racine  at  that  time, 
and  senior  member  of  the  law  firm  of  Butterfield  and  Chase. 
Mr.  Butterfield  was  a  direct  descendant  of  Governor  Brad- 
ford of  Massachusetts,  and  was  born  in  the  village  of  Can- 
terbury, Conn.,  in  1797,  and  hence  was  fifty-three  years  of 
age  in  1850.  At  an  early  age  he  moved  with  his  parents  to 
the  village  of  Homer,  Cortland  County,  New  York,  and 
practiced  law  there  prior  to  1847,  when  he  moved  with  his 
family  to  Milwaukee,  and  practiced  a  short  time,  but  lo- 
cated in  Racine  prior  to  1850.  In  1855  he  removed  to 
Preston  County,  West  Virginia,  where  he  remained  until 
1866,  holding  the  office  of  District  Judge  for  a  time;  in  1866 
he  removed  to  Ionia,  Michigan,  where  he  practiced  law 
until  his  death  in  May,  1872.  Mr.  Butterfield  was  a  fine 
looking  man,  six  feet  three  inches  in  height,  and  retained 


46  The  Story  of  a  Great  Court 

his  erect  carriage  until  his  death.  He  was  a  voluminous 
correspondent,  and  when  he  was  away  from  home  he  spent 
much  time  in  writing  letters  to  his  wife  and  daughters  at 
home,  describing  his  experiences  and  philosophizing  ex- 
tensively upon  life  and  manners.  During  those  early  days 
the  whole  calendar  of  cases  in  the  Supreme  Court  was  put 
on  call  at  once,  and  the  Court  called  the  cases  in  their  order 
until  all  were  argued.  Thus  it  was  necessary  for  the  law- 
yers to  attend  Court  on  the  first  day  and  remain  in  attend- 
ance until  their  last  case  was  argued,  and  a  lawyer  with 
cases  near  the  end  of  the  calendar  would  be  obliged  to  spend 
several  weeks  at  the  capital,  awaiting  the  call  of  his  case  or 
cases.  There  were  no  railroads  in  the  early  '50's,  and  the 
stage  trip  was  long  and  tiresome;  to  attend  a  term  of  the 
Supreme  Court  in  those  days  was  almost  as  much  of  an 
undertaking  for  the  Racine  lawyer  as  a  trip  to  Europe  at 
the  present  time. 

The  first  letter  written  by  Mr.  Butterfield  is  dated  June 
11,  1850,  and  written  from  the  Supreme  Court  room.  Ap- 
parently it  was  the  writer's  first  visit  to  Madison,  and  he 
thus  describes  the  capitol  and  the  Supreme  Court  room : 

"I  have  just  arrived,  and  had  a  good  dinner,  etc.,  at  Welch's 
Hotel,  and  am  here  waiting  for  the  dignitaries  to  come  in.  This 
is  a  fine  site  for  a  capitol,  but  the  capitol,  a  poor  squat,  ill-pro- 
portioned sort  of  a  thing,  all  out  of  gear  and  enough  to  make 
an  architect  run  mad  and  flee  his  country.  And  when  you  look 
to  see  the  cost  of  the  thing,  you  would  eulogize  the  loco  focos 
for  their  liberality.  Enough  money  was  expended  in  making 
this  burlesque  upon  architecture  to  have  created  a  perfect 
Pantheon.  This  room  is  well  enough  when  you  get  in, — a  good 
carpet  on  the  floor,  nice  desks,  pen^  ink  and  paper,  sand-box,  etc., 
a  nice  pen  for  the  judges  to  sit  in,  damask  hangings  at  the 
windows  as  red  as  old  Stow's  nose,  and  7  by  9  maps  on  the  wall 
back  of  the  judgment  seat,  two  astor  lamps  suspended  by  close 
lines,  a  clock  swinging  its  pendulum  away  one  side,  ink  bottles, 
etc.,  on  the  clerk's  desk." 


Some  Contemporaneous  Comments  47 

Later  in  a  part  of  the  same  letter,  written  on  the  follow- 
ing day,  he  makes  the  following  comments,  suggestive  per- 
haps of  homesickness : 

"I  don't  much  like  this  place.  I  walked  all  round  and  saw 
some  pretty  places — some  pretty  faces,  but  little  of  the,  graces. 
Not  a  piano,  harp,  lute  or  guitar  or  even  the  voice  of  woman, 
except  she  scolded  the  cow  while  milking,  or  the  children.  It 
was  not  until  I  arrived  at  my  lodgings  that  I  heard  close  by 
the  sound  of  a  very  sweet  harmonica,  played  by  the  rude  hand 
of  man.  I  met  several  of  the  dignitaries  last  night  on  the  walks. 
But  these  great  men  in  Wisconsin  are  bearish,  and  they  want 
the  influence  of  high  intellectual  society.  I  have  often  wondered 
how  it  was  possible  for  high-minded,  refined  and  delicate  women 
to  endure  the  society  of  men  who  are  so  rough,  and  have  nothing 
to  commend  them  but  their  bows  and  flattering  words  without 
cincerity." 

The  next  letter  is  dated  July  16,  1852,  and  is  remarkable 
because  it  contains  detailed  descriptions  of  two  arguments 
made  by  Mr.  Mills  (who  can  be  no  other  than  Joseph  T. 
Mills  of  Lancaster),  which  are  fully  as  interesting  and 
amusing  as  the  speeches  themselves  must  have  been  when 
delivered. 

Mr.  Mills  was  one  of  the  most  remarkable  and  interesting 
characters  in  the  early  history  of  Wisconsin.  A  Kentuckian 
by  birth,  he  came  to  Lancaster  early  in  the  '40's  and  com- 
menced the  practice  of  law.  He  was  eccentric  to  a  degree, 
an  able  lawyer,  served  two  terms  as  circuit  judge  and  often 
in  the  legislature,  commanded  the  respect  and  admiration  of 
all  his  cotemporaries,  and  was  a  large  figure  for  many 
years  in  the  history  of  the  state  ;  a  full  and  interesting  sketch 
of  his  life  will  be  found  in  Volume  98  of  the  Wisconsin 
reports  at  page  xlv.  His  speeches,  whether  at  the  bar  or 
on  the  rostrum,  were  always  full  of  illustrations  and  al- 
lusions drawn  from  all  the  sciences,  as  well  as  from  biblical 
and  classical  literature,  and  they  also  sparkled  with  humor- 


48  The  Story  of  a  Great  Court 

ous  conceits  and  witty  repartee.  It  goes  without  saying 
that  his  speeches  must  have  been  as  rambling  and  discursive 
as  they  were  brilliant.  It  seems  peculiarly  fortunate,  there- 
fore, that  we  have  the  following  quite  full  accounts  of  two 
of  his  arguments  upon  quite  simple  questions  in  the  Supreme 
Court.  It  would  seem  that  the  arguments  must  have  con- 
sumed at  least  half  a  day  each ;  at  the  present  time  he  would 
be  fortunate  if  he  was  allowed  half  an  hour  for  either  of 
them. 

The  following  is  the  description  of  the  first  speech : 
"I  have  now,  11  A.  M.,  been  hearing  Mr.  Mills  on  pleading  — 
a  dry  subject  to  all  lawyers,  but  he  has  given  a  desertation  en- 
livened with  tropes  and  similies  which  brought  all  down  in  mer- 
riment and  laughter.  The  question  was  whether  a  certain  plea 
of  Bar  was  good  in  a  case  where  administrators  were  sued  in 
common  law  court  when  the  estate  had  been  settled  or  partly 
settled  by  the  Surrogate's  court  as  an  insolvent's  estate,  and 
the  objection  taken  to  the  plea  was  that  it  did  not  set  out  that 
the  estate  was  insolvent.  Mills  said  that  it  was  unnecessary  to 
plead  the  estate  was  insolvent,  for  it  had  become  common  law 
in  this  state  that  all  estates  of  deceased  persens  were  insolvent, 
that  there  never  had  been  an  estate  of  a  deceased  person  known 
in  the  state  not  insolvent,  and  that  it  was  so  universal  & 
common  a  thing  that  it  was  the  duty  of  the  other  party  to  plead 
that  the  estate  was  not  insolvent;  that  this  was  also  adopted 
by  the  statute  in  this  state  so  that  the  departed  might  die  & 
rest  in  peace,  and  the  estate  be  settled  without  his  name  being 
brought  into  court,  and  he  rapping  away  at  the  desk  of  the 
court  to  direct  his  heirs  &  administrators  how  to  cary  on 
the  affairs  of  suits  to  settle  the  estate  for  years  and  deprive  his 
mains  from  entering  into  that  rest  of  the  righteous  prepared 
for  just  men  made  perfect.  For  how  could  a  man  enter  the 
mansion  of  the  just  while  entangled  by  a  common  law  proceed- 
ing to  settle  his  estate  and  the  state  had  fixed  a  rule  that  if 
the  estate  was  declared  insolvent  that  his  estate  should  not  be 
pestered  with  common  law  suits  for  a  year  &  in  some  cases 
18  months  by  any  suits,  and  if  the  creditor  did  not  come  into 
the  Probate  Court  within  the  time  fixed,  he  should  be  forever 


Some  Contemporaneous  Comments  49 

barred  of  his  remedy.  And  he  claimed  that  this  is  so  that  the 
creditor  should  not  call  the  spirits  of  departed  from  the  pleasures 
of  Paradise  to  look  after  terestial  things.  And  besides  it  was 
to  teach  men  that  they  must  not  stand  all  the  day  idle  and  at 
night  claim  their  wages;  that  they  must  work  while  the  day 
lasts,  'for  the  night  cometh  when  no  man  can  work.'  He  said 
the  glas  of  time  had  been  handed  over  to  the  Probate  from  the 
common  law  court,  and  when  the  Probate  turned  the  glas  time 
was  cut  of,  that  he  held  the  cord  of  legal  existance  in  his  had 
(hand)  &  when  he  should  cut  it  all  was  gone.  This,  he  said,  was 
done  in  a  simple  way.  The  Administrator  must  declare  the  estate 
insolvent,  and  he  could  always  do  so  here,  for  no  one  ever 
thought  of  anything  living  saved  from  an  estate  here,  and  the 
Administrator  must  lie,  and  the  safe  way  was  to  do  as  all  had 
done.  'Why,'  says  he,  'the  old  law  gave  to  the  most  vigilant 
a  preference  so  that  if  the  creditor  got  a  judgt.  he  had  a  prior 
right,  but  under  our  law  there  was  no  prefference  to  the  judg- 
ment creditor,  for  he  may  now  lie  on  the  sofa  and  sleep  away 
and  submit  his  claim  to  the  Probate  &  all  will  go  well.  The 
old  law  was  mad  (made)  before  sofas  were  invented,  when 
creditors  had  to  set  on  rocks  or  trees,  but  could  not  rest  on 
lounges  as  suits  do  in  this  court,  but  had  to  be  up  and  awake.' 
So  that  if  a  creditor  will  only  place  his  debt  into  the  Probate 
mill,  it  will  be  ground  out  &  he  will  have  his  share  of  the 
meal.  But  if  he  will  get  onto  the  lounge  and  sleep  Rip  Van 
Rimple  like  till  the  lock  and  stock  of  his  rotten  and  his  dog  has 
left  him,  and  his  rifle  so  rusted  that  he  can't  draw  the  charge 
nor  shoot  it  off,  and  his  own  children  have  forgotten  him,  he 
cannot  complain  that  he  gets  no  game.  He  should  be  up  and 
work,  arouse,  be  awake,  lay  up  for  himself  in  the  Probate  court 
his  treasure  and  then  he  may  rest.  He  must  come  ready  & 
by  the  time  with  his  lamp  trimmed  or  he  shall  not  enter.  He 
must  come  dressed  in  the  right  garments,  according  to  the 
fashion  of  the  times,  not  in  the  old  tattered  garments  of  the 
common  law,  or  he  shall  be  cast  out;  he  must  come  to  the 
Prohate  feast  or  he  shall  not  sit  at  the  table  or  receive  his  tallents 
with  their  increase,  but  like  the  unworth  servant  he  shall  loose 
that  which  he  seemeth  to  have,  and  it  shall  be  divided  among 
the  other  creditors.  It  is  contended  say  he  this  may  be  a  privi- 
leged debt,  that  is,  it  was  for  Doctor's  bill  or  funeral  expenses  & 
charges,  but  this  man  died  in  1848  and  the  note  is  dated  in  1843. 
4 


50  The  Story  of  a  Great  Court 

He  never  knew  a  dead  man  doctor  in  his  last  sicness  so  long  be- 
fore his  death,  and  in  this  country  the  undertaker  did  not  fit  out 
&  bury  his  subject  so  long  before  life  was  extinct.  The  doctor  mad 
pretty  speedy  work  of  it,  for  if  a  man  had  anything  to  pay  with 
the  doctors  flocked  around  him  like  herron  and  there  would  be  one 
at  his  head,  one  in  the  middle,  and  at  his  feet,  and  he  was  used 
up  in  quick  time.  It  was  not  the  process  of  years  for  doctors 
to  kill  in  this  country,  and  the  undertaker  has  so  much  work 
in  his  way  to  do,  that  he  never  could  furnish  in  advance  or 
keep  ready  work  on  hand.  Besides  the  lawyers  were  always 
ready  to  grab  all  as  soon  as  possible,  and  if  the  doctor  did  not 
do  his  work  in  quick  time  he  would  be  ." 

The  second  speech  was  evidently  made  on  the  following 
day,  and  is  described  as  follows  in  the  same  letter: 

"This  forenoon  I  have  been  listening  to  Mr.  Mills  of  Ioa  I  think 
all  the  forenoon.  He  is  one  of  the  most  excentric  men  I  ever 
heard.  He  has  a  fine  memory,  wonderful  imagination,  and  the 
most  fanciful  combination  and  comparison  I  ever  knew.  And 
chops  in  every  kind  of  thing,  scripture,  philosophy,  geology, 
mesmerism,  ichthiology,  ornithology,  zoology,  poetry,  law,  rhet- 
oric, farming  and  everything  all  heads  and  points  and  binds 
them  up  in  such  a  manner  one  would  think  he  meant  to  prevent 
their  use  for  any  purpose,  loosing  sight  apparently  of  his  sub- 
ject and  presently  they  will  begin  to  start  out  like  rockets  in 
all  directions  and  all  colors  &  heights  and  figures,  and  darting 
and  dazeling  in  all  directions  and  finally  after  flashing  and  sur- 
prising a  while  he  gathers  one  and  another  in  any  way  he  can 
and  lays  them  as  auquardly  as  possible  and  as  no  one  else  would 
upon  his  premises  to  prove  his  proposition  by  contrast,  by  de- 
duction, by  light  &  shades  &  lines  &  circles,  angles  and  signs 
&  cosigns,  tangents  &  recants,  points  &  postures  so  quear  that 
all  laugh  all  the  while  and  still  admire  his  wit,  good  sense 
&  nonsense. 

"For  instance  to  show  that  the  court  had  not  jurisdiction  he 
claimed  that  some  crimes  were  above  the  power  of  the  court 
and  only  cognizable  at  the  bar  of  judgment  where  omniscence 
could  detect  virtue,  although  it  had  purcolated  through  every 
stroke  of  human  depravity  from  Cain  down  to  the  Mormon,  and 
had  been  condensed  under  the  polar  frosts  &  rarified  on  the 
maridian.     Then  again  other  crimes  were  so  common  the  court 


Some  Contemporaneous  Comments  51 

could  not  take  cognizance  of  them.  What  could  it  do  with  the 
deceits  of  Mahomet,  who  had  spred  them  throughout  the  oriental 
regions,  or  with  the  lies  of  the  latter  day  saints  who  were  draw- 
ing tribute  from  the  whole  world  and  peopling  with  fanatics 
&  villins  the  Utahs?  And  what  could  the  court  do  with  the 
murders  by  wholesale  of  Alexander  and  Bonaparte,  but  one  single 
murder  they  might  punish.  And  what  of  all  this  figure?  Why 
the  court  could  entertain  a  cause  for  a  fraud,  but  could  not 
punish  for  lying.  Again  he  said  the  plff.  had  put  in  his  case 
more  words  than  were  in  Webstor's  dictionary  all  counted,  and 
still  he  had  not  enough  to  state  in  a  logical  manner  a  cause  of 
action;  he  had  stated  more  depravity  of  human  action  than  was 
contained  in  the  bible,  yet  he  had  not  specified  anything  that 
would  make  the  defendant  ameni  ,ble.  And  so  he  went  on  for 
3%  hours.  All  listened  till  all  were  anhungered,  and  the  court 
adjourned.  His  manner  was  as  singular  as  his  logic.  He  some- 
times pulled  downward  with  his  hands  as  though  scraching  hay 
from  a  mow;  then  he  would  pitch  it  up  again,  then  mow  it  & 
rake  it  &  cock  it;  then  he  would  shovel  it  and  whirl  it  about 
&  up  &  down  and  all  the  time  he  raised  on  his  toes  up  & 
down  with  the  greatest  &  most-  vehement  action.  His  face 
&  countenance  sometimes  turned  on  the  one  hand  &  then  on 
the  other,  now  and  then  observing  the  court  and  then  some 
inanimate  thing,  as  though  he  was  playing  hocus  pocus  with  it. 
If  he  had  been  rightly  educated  he  could  have  written  better  than 
Peter  Pindar  or  Pope.  But  as  he  is  he  is  only  good  to  amuse, 
mislead,  mimic  &  mock,  smoke  &  smother  his  antagonist." 

Mr.  Butterfield  next  writes  December  16,  1852,  after  a 
very  strenuous  stage  trip  which  he  thus  describes : 

"I  am  here  half  dead  with  bruises  and  knocks  by  staging  over 
these  rough  roads  in  the  night  time.  Nothing  happened  to  us 
out  of  the  common  course  of  events.  By  the  power  of  gravita- 
tion we  kept  pretty  near  the  surface  with  now  and  then  a  jolt 
that  would  make  a  fellow  feel  after  the  joints  in  his  neck.  One, 
I  remember,  gave  me  the  worst  shock  I  ever  experienced  in  that 
way,  and  my  head  aches  yet  and  will  I  presume  till  i  have  time 
to  rest.  After  we  got  within  about  20  miles  of  here  I  found  my 
truck  missing  and  dispatched  a  hand  to  get  it,  and  send  on 
today  stage.  What  will  be  the  report  of  this  committee  I  know 
not.     But  this  I  am  well  assured,  that  I  am  here  with  tarnished 


52  The  Story  of  a  Great  Court 

linnen,  long  beard  &  no  change  of  hose.  I  feel  to  ill  to  appear 
in  court.  Saw  Whiton,  told  him  I  was  sick,  etc.  The  court  had 
no  quorum  till  this  morning,  so  that  little  will  be  done.  I  do 
hate  (I  use  the  word  in  the  worst  sence)  staging  especially  in 
the  night.  I  have  got  so  much  of  the  up  &  down  about  me 
that  it  makes  me  quite  sensitive  when  I  am  canted  out  of  a 
purpendicular  position,  and  more  especially  when  I  am  beside 
a  large  man  who  would  come  upon  me  with  a  two  hundred  pound 
leveler  (?)  if  we  came  into  a  horizontal,  so  I  am  under  such 
circumstances  inclined  to  dodge  responsibility  and  rid  myself 
of  all  such  superincumbrance.  We  had  a  full  load  of  gents,  Hub- 
bel,  Finch,  Brown,  Upham  and  Watkins." 

This  trip  was  evidently  made  at  the  opening  of  the  term, 
and  it  is  interesting  to  note  that  in  the  same  stage  were 
Judge  Hubbell,  Asahel  Finch,  of  the  firm  of  Finch  &  Lynde, 
Jas.  S.  Brown,  D.  A.  J.  Upham,  and  Chas.  K.  Watkins  of 
the  Milwaukee  bar. 

Upon  the  following  day  he  writes : 

"Thus  far  I  wrote  yesterday  and  my  head  &  bones  ached 
so  that  I  was  forced  to  go  to  bed,  and  after  sleeping  some  two 
hours  awoke  refreshed.  Today  I  have  been  listening  to  the 
affairs  in  court.  Some  arguments  came  off,  but  nothing  verry 
interesting.  The  court  took  up  the  calendar  and  are  going 
through  as  far  as  they  can.  It  is  rather  a  heavy  one,  and  will 
take  a  long  time  to  go  through.  Our  case  stands  low  on  it,  and 
will  not  be  reached  till  40  cases  more  are  heard.  The  bar  of 
Wisconsin  are  fine  looking  men,  as  fine  as  I  ever  saw  anywhere, 
— but  one  or  two  ordinary  looking  men.  But  as  a  general  thing 
I  should  say  they  are  not  any  too  much  given  to  hard  study. 
Some  appear  to  have  spent  much  time  in  study,  but  most  appear 
to  enjoy  sport  and  pleasure,  and  are  apt  to  try  to  live  by  their 
wits." 

Mr.  Butterfield  next  came  to  Madison  apparently  in  June, 
1853,  coming  part  of  the  way  by  rail.  From  Janesville  to 
Madison  he  came  by  stage,  and  one  of  his  fellow  passengers 
was  Judge  Abram  D.  Smith  of  Milwaukee.  The  separate 
Supreme  Court  had  just  been  organized,  and  the  June  term, 
1853,  was  its  first  term.     At  this  time  there  was  much  ex- 


Some  Contemporaneous  Comments  53 

citement  concerning  spiritualism  and  spirit  rappings,  as 
they  were  called,  and  Mr.  Butterfield  gives  the  following 
account  of  the  discussion  in  the  stage  upon  these  subjects, 
in  which  it  appears  that  Judge  Smith  took  an  active  part: 
"When  we  got  into  the  stage  again  there  were  no  ladies  and 
we  began  to  talk  of  the  Rappers  &  Rapping  spirits,  and  drew 
out  theories  and  suggestions,  but  could  demonstrate  but  little, 
but  we  all  concluded  it  was  well  to  examine  these  things  and 
see  what  they  might  amount  to,  as  at  the  present  day  new 
discoveries  were  making  both  in  the  phisical  as  well  as  the 
spiritual  world.  And  Smith  quoted  St.  Paul,  'Why  should  ye, 
etc.,  that  God  should  raise  the  dead,'  and  said  this  remark  of 
his  might  be  applied  to  everything  passing,  as  we  now  saw  as 
through  a  glass,  etc.  Human  nature  was  about  to  be  elevated 
by  new  lights,  and  discoveries  to  be  made  and  perhaps  spiritual 
nature  had  spiritual  atmosphere  by  which  it  could  come  in  con- 
tact with  spirit  in  a  way  more  subtle  than  sound  is  conveyed  by 
air,  or  sight  by  light,  but  yet  quite  as  tangeable  as  either,  and 
that  spirits'  existice  (existence)  within  this  medium  both  in 
&  out  of  the  body.  This  may  be  electricity,  it  may  be  another 
more  extensive  &  rarified  fluid  not  confined  to  the  surface  of  our 
planet,  but  pervading  all  space,  and  when  the  soul  is  disembodied 
it  mounts  up  upon  this  medium  of  everlasting  existance  into  a 
spiritual  existance  of  either  happiness  or  drops  into  a  dark  & 
desolate  region  of  unextinguishable  darkness  and  misery.  So 
we  talked  &  reasoned,  remaking  (remarking)  the  objects  by 
the  way,  and  the  improvements  going  on,  etc.,  till  we  arived 
about  sunset  at  this  place,  tired,  dusty,  durty  and  glad,  and 
rather  pleased  with  ourselves  &  each  other,  and  not  as  I  felt 
last  winter  that  I  had  not  got  one  new  thought,  but  all  I  had 
heard  was   repugnant." 

At  this  time  the  impeachment  of  Judge  Hubbell  was  go- 
ing on  before  the  state  senate  and  Mr.  Butterfield  (who  was 
evidently  much  opposed  to  Judge  Hubbell)  speaks  thus  of 
Hubbell  and  of  Jonathan  E.  Arnold,  one  of  Hubbell's  coun- 
sel in  the  impeachment  proceedings : 

"The  Impeachment  case  is  going  on  and  no  man  that  I  have 
heard  speak  of  it  says  anything  in  favor  of  the  impeached;   one 


54  The  Story  of  a  Great  Court 

said,  'The  senate  will  impeach  him  or  themselves.'  Arnold  was 
in  the  stage  behind  us;  he  looks  poorly,  as  though  he  was  reap- 
ing an  early  harvest  of  wild  oats  and  youthful  follies." 

On  the  23rd  of  June  he  writes  again,  and  devotes  some 
space  to  a  description  of  the  geography  of  Madison,  which 
he  illustrates  with  a  diagram,  and  winds  up  with  a  blow  at 
Judge  Hubbell : 

"I  have  been  in  court  all  day  listening  to  counsel  as  I  (had) 
nothing  else  to  do  and  to  do  that  was  pleasant  for  we  heard 
some  fine  argumints.  We  had  a  powerful  rain  yesterday;  it 
poured  down  masterly,  and  today  we  have  had  it  as  cool  as  we 


:m 


could  wish.  The  weather  has  taken  a  fine  turn,  much  in  favor 
of  good  wheat.  I  am  certain  I  have  never  seen  the  crops  better. 
This  town  has  improved;  the  capitol  is  a  miserable  object  to 
talk  about,  or  look  at,  but  it  stands  on  the  prettiest  spot  in  the 
whole  earth  for  such  a  building.  It  is  right  on  the  sumit  of  a 
rising  ground  which  slopes  off  one  way,  west,  to  a  kind  of  wet 
marsh  or  ravine,  north  to  the  lake,  south  to  the  lake,  and  east 
to  the  lake  &  marsh.  The  publick  square  is  an  area  of  about 
8  or  10  acres  in  square  form;  the  capitol  in  the  center,  square 
with  the  world.  The  publick  square  is  cornerwise  with  the 
world,  a  corner  to  each  cardinal  point.  The  broad  walks  run 
one  east,  south,  west  &  North,  and  one  to  each  quarter,  making 
eight  walks.  Supose  this  diagram  was  square  you  would  have 
8  avenues  leading  from  the  capitol  to  the  center  line,  and  these 
main  avenues  extend  out  into  the  country  as  far  as  the  city 
extends,  cutting  the  town  up  into  diamonds,  so  it  may  (be  called) 


Some  Contemporaneous  Comments  55 

the  city  of  diamonds.  It  looks  best  on  paper,  if  well  plated. 
There  are  many  good  houses  here,  but  no  good  publick  houses. 
They  have  a  fine  sand  stone  for  building,  which  is  easily  cut 
and  works  finely,  and  several  good  buildings  of  it  are  going  up. 
There  are  fewer  poor  buildings  in  proportion  here  than  any 
place  I  know  of.  I  have  seen  some  tolorable  gardens,  but  they 
are  not  equal  to  the  houses  generally.  The  soil  is  fine  for  gar- 
dening, but  not  as  good  as  in  Racine,  I  think.  I  have  just  come 
from  court,  where  I  have  again  listened  to  the  conclusion  of 
the  case  yesterday  begun.  After  counsel  concluded,  Hubbell,  the 
judge  before  whom  the  cause  had  been  tried  in  the  court  below, 
came  in  and  made  some  remark  to  the  court  in  paliation  of 
some  strictures  on  his  character,  and  showed  that  he  was  bler>cl- 
ing  at  every  pore.  He  is  to  be  pitied,  but  he  cannot  be  respected. 
Smith  who  is  now  on  the  bench,  who  has  been  galled  by  Hubbell 
over  &  over  again,  must  feel  as  though  the  day  of  retribution 
had  come." 

On  the  28th  of  June  he  is  still  waiting  for  his  case  to  be 
reached ;  the  impeachment  trial  is  still  on,  and  he  writes  as 
follows : 

"Another  day  has  been  passed  away  in  court  hearing  a  short 
case  which  has  taken  a  good  part  of  3  days  or  more.  I  think 
we  all  got  intolorable  tired  of  the  concern,  and  were  glad  when 
it  was  ended,  so  that  we  might  hope  of  getting  on  towards  our 
case  a  little.  But  that  case  is  over,  and  the  business  of  the 
court  will  progress  again.  Hubbell  has  been  on  the  defence  for 
two  days,  and  it  is  said  his  witnesses  injure  him  rather  than 
benefit  him.  One  he  had  on  the  stand  this  A.  M.  hurt  his  cause 
very  much.  A  woman,  she  swore  the  judge  put  his  arm  about 
her;  she  remonstrated.  She  thought  no  particular  harm  was 
done,  but  being  asked  why  she  remonstrated  she  said  she  thought 
it  was  a  little  exciting  to  human  nature.  He  ought  to  have 
known  what  she  would  say,  and  should  have  avoided  calling  her. 
But  I  think  his  chain  is  run  out,  as  it  is  with  all  villins,  and  he 
must  fall.  Let  us  be  content  with  our  humble  lot,  rather  than 
be  tormented  in  the  manner  those  are  who  seek  high  places." 

On  the  following  day  he  argued  one  case,  and  writes  as 
follows : 

"I  have  just  come  down  from  the  capitol,  having  been  detained 
arguing  a  case  before  the  court;  case  of  Barnes  &  Killip  v.  Elm- 


56  The  Story  of  a  Great  Court 

linger  &  Keidle,  which  was  called  up  rather  unexpectedly,  stand- 
ing No.  58  on  calendar.  A  great  number  of  cases  were  passed 
on,  account  of  Attys  being  in  court  of  impeachment.  I  do  not 
know  how  that  case  progresses." 

At  7  P.  M.  of  the  following  day  he  writes  again: 
"7  P.  M.  The  court  have  adjourned,  having  gone  through  the 
calendar,  and  passed  4  causes  I  am  engaged  in  on  account  of 
the  impeachment  court,  so  that  I  must  come  up  when  that  court 
gets  through.  I  have  argued  one  cause  only,  and  that  the  op- 
posing attorney  was  not  present,  and  perhaps  will  not  attend 
during  term.  If  he  should  I  shall  be  obliged  to  answer  his 
argument  in  writing,  so  I  must  stay  at  least  till  the  cases  are 
decided.  If  there  was  a  railroad  from  here  we  would  be  at  home 
over  Sunday." 

There  are  no  more  letters  till  July  3rd,  when  he  writes 
again  of  the  town,  as  follows : 

"I  have  wandered  around  this  town  in  all  directions,  and  yet 
I  do  not  understand  it;  nothing  is  square  here,  all  is  diamond- 
ing, so  when  you  go  in  any  one  street  you  are  crossing  almost 
all  other  streets;  such  streets  cut  a  city  into  a  vast  number  of 
blocks  and  pointed  lots;  looks  well  on  paper,  but  is  not  so  useful 
as  the  Philadelphia  plan  of  right  angles.  I  was  going  up  early 
this  morning  to  the  P.  O.  to  get  letters,  and  passed  along  the 
side  walk  newly  graviled  by  the  sands  of  the  beach  of  one  of 
the  beautiful  lakes  surrounding  the  town,  and  as  the  sun  was 
striking  it  in  almost  horizontal  lines  it  sparkled  as  though  it 
was  full  of  small  mirrors,  and  I  had  the  curiosity  to  examine 
it,  and  found  mixed  with  the  sand  &  gravel  innumerable  small 
broken  shells,  white  and  many  nearly  transparint,  and  some  I 
found  nearly  whole.  They  appeared  to  be  of  two  kinds  mostly, 
the  univalve  &  the  bivalve,  and  I  was  led  to  consider  what  a 
vast  amount  of  animal  life  had  sported  in  those  bright  waters 
&  perished  on  the  shores.  Many  of  them  doubtlessly  were 
devoured  by  the  sharks  of  the  fresh  water,  called  pike,  a  large 
Saurus  fish." 

On  July  10th  the  impeachment  trial  was  drawing  to  a 
close,  and  he  writes  as  follows : 

"Well,  the  closing  speech  by  Ryan  is  almost  finished, — will 
be  tomorrow.     I  have  not  heard  him.     I  have  spent  my  time  in 


Some  Contemporaneous  Comments  57 

the  S.  P.  Court,  where  I  could  learn  as  much  and  keep  cool.     I 
am  told  Ryan  was  brilliant  and  exerted  himself  very  much." 

On  July  nth  he  writes: 

"6  P.  M.  I  have  spent  the  day  in  court;  heard  several  opinions, 
very  good, — one  quite  stringent  and  rather  in  advance  of  other 
courts,  but  I  cannot  say  but  in  the  main  correct. 

"The  court  of  impeachment  have  been  voting  on  the  specifi- 
cations and  the  heaviest  vote  yet  given  is  one-half  against  Hub- 
bell;  it  requires  2/3ds  to  convict.  I  am  told  the  most  important 
specifications  are  passed  upon,  and  the  prospect  is  he  will  escape, 
but ." 

At  2  P.  M.  of  the  12th  of  July,  he  writes  as  follows: 
"The  great  farce  is  over  now.  Hubbell  is  acquited,  but  not 
cleared.  And  the  irish  had  a  great  row, — burned  Ryan  in  effigy, 
drumed  the  whole  town,  and  fired  cannon,  and  Hubbell  on  a  call 
addressed  the  mob  and  made  himself  a  fool,  as  he  always  was. 
No  one  thinks  as  well  for  his  success  of  him.  I  think  it  will 
react  on  him  and  make  him  appear  mean  if  those  who  are  op- 
posed will  be  still.     Going  to  the  court." 

On  July  15th  he  says: 

"I  was  not  quite  well  last  night,  and  we  had  a  little  way  from 
my  lodging  Dutch  fiddle  all  night,  and  it  kept  me  awake.  But 
I  feel  better  today.  Besides  the  dogs  &  cats  had  concerts 
last  night.  I  hope  they  have  adjourned  and  will  leave  with  the 
legislature.  The  House  were  quite  incensed  by  the  decision  of 
the  Senate  in  the  impeachment  case,  and  would  not  concur  with 
them  as  to  paying  counsel.  The  party  will  take  a  shock  by  this 
matter,  and  must  be  a  good  deal  divided  in  consequence.  I  am 
not  able  to  say  when  I  shall  be  able  to  come  home,  but  probably 
shall  in  some  two  weeks." 

On  Jvly  19th  he  achieved  some  results,  as  appears  by  the 
following  extract  from  his  letter  of  that  date : 

"You  know  I  suppose  that  I  had  a  motion  served  on  me  a  few 
days  since  in  the  Whiting  1  suit  which  Randall  &  Ryan  thought 
was  to  be  the  means  of  blowing  up  the  case  to  all  intents  and 
purposes.    Randall  said  to  me  he  should  beat  me  on  it,  and  that 


1  Whiting  v.  Gould,  1  Wis.  *195. 


58  The  Story  of  a  Great  Court 

it  was  what  would  beat  in  the  suit,  and  he  said  in  court  the 
motion  probably  would  dispose  of  the  suit  for  the  term,  if  not 
for  good.  But  this  morning  the  court  decided  against  him  and 
gave  us  costs,  and  I  hope  to  get  at  least  $20  out  of  them  soon 
so  as  to  defray  expenses.  We  shall  soon  reach  the  case,  and  I 
hope  now  to  be  able  to  come  home  in  the  course  of  ten  days. 
I  believe  I  have  been  from  home  one  long  month,  and  I  want 
to  see  all  of  you." 

The  letters  here  cease.  It  is  not  to  be  understood  that 
in  quoting  the  remarks  about  Judge  Hubbell  and  the  im- 
peachment trial  the  author  of  this  volume  is  adopting  the 
views  of  Mr.  Butterfield  or  approving  them.  I  have  not 
deemed  the  merits  of  that  prosecution  as  at  all  involved  in 
the  scope  of  this  work  and  do  not  wish  to  express  any 
opinion  concerning  it.  Judge  Hubbell  had  warm  friends 
and  determined  enemies,  and  his  impeachment  aroused  the 
bitterest  feelings  on  both  sides.  It  must  be  remembered 
that  Mr.  Butterfield  wrote  from  the  standpoint  of  an  avowed 
enemy  and  the  extracts  have  been  inserted  here  simply  to 
illustrate  the  feelings  of  Judge  Hubbell's  opponents. 


Personal  Recollections  of  Whiton  59 


CHAPTER  VI 

PERSONAL   RECOLLECTIONS   OF    WHITON   BY    HENRY    M.    LEWIS 

One  of  the  oldest  members  of  the  Madison  bar  is  Mr. 
Henry  M.  Lewis  who  came  to  Madison,  a  young  man,  in 
1852  and  has  been  an  active  and  honored  member  of  the 
profession  ever  since  that  time,  being  now  Referee  in 
Bankruptcy  for  the  Western  District  of  Wisconsin. 

Mr.  Lewis  had  an  intimate  personal  acquaintance  with 
Chief  Justice  Whiton.  At  the  earnest  request  of  the  writer 
Mr.  Lewis  consented  to  embody  his  personal  recollections 
of  Judge  Whiton  in  a  short  sketch  which  is  intensely  inter- 
esting as  it  seems  to  me  and  it  is  here  inserted  in  its  en- 
tirety and  form  the  present  chapter. 

Judge  Whiton,  when  he  first  came  to  the  territory  of  Wis- 
consin, settled  upon  a  small  farm  on  the  prairie  near  what 
is  now  the  city  of  Janesville.  In  his  youth  he  had  learned 
the  trade  of  a  millwright  and  carpenter,  and  he  built  with 
his  own  hands  a  small  cabin  upon  his  farm  where  he  lived 
for  some  years  the  life  of  a  bachelor  and  somewhat  that  of 
a  hermit.  He  afterwards  erected  the  dwelling  in  which 
he  was  living  at  the  time  of  his  death, — doing  the  carpenter 
work  himself.  At  the  time  he  first  settled  on  his  farm,  he 
seemed  not  to  seek  acquaintances  or  social  intercourse ;  yet 
he  was  always  democratic,  simple  and  unassuming  in  his 
intercourse  with  his  fellowmen,  and  it  was  the  farmer  folk 
who  were  his  neighbors  who  first  discovered  his  rare  abilities 
and  sterling  character.     It  was  through  their  appreciation 


60  The  Story  of  a  Great  Court 

of  him  and  their  urging  him  for  positions  of  trust  that  he 
was  first  started  upon  his  political  career  which  was  destined 
to  reflect  such  honor  upon  him  and  upon  the  state  of  his 
adoption.  As  I  recollect  his  appearance  when  I  first  knew 
him,  about  1852,  he  was  a  man  somewhat  above  the  average 
height  and  size  indicating  that  in  his  youth  he  had  been  a 
man  of  more  than  ordinary  physical  strength  and  vigor,  but 
from  the  time  that  my  recollection  of  him  began,  there  was 
in  his  walk  and  movements  a  suggestion  of  loss  of  physical 
strength  which  increased  until  the  time  of  his  death.  But 
his  face  was  the  most  striking  feature  of  the  man.  There 
was  little  color  in  the  face,  but  it  was  one  that  at  once  in- 
spired confidence  in  his  integrity  and  purity  of  character. 

The  portrait  of  him  which  has  hung  for  some  years  in 
the  Supreme  Court  room  of  the  state  gives  a  correct  and 
true  idea  of  him  as  he  appeared  in  life.  When  I  first  knew 
him  he  was  47  years  of  age,  but  had  the  appearance  of  being 
older.  His  blonde  hair  was  well  sprinkled  with  gray  and 
he  seemed  more  venerable  than  the  four  or  five  circuit 
judges  associated  with  him  upon  the  bench  when  the  circuit 
judges  of  the  state  constituted  the  Supreme  Court,  although 
two  other  judges,  Stow  and  Jackson  were  his  elders. 

He  had  at  some  time  in  his  life  been  addicted  to  the  use 
of  intoxicating  liquors  to  excess,  but  he  had  before  I  knew 
him  reformed  in  that  respect  and  become  a  model  of 
sobriety,  in  all  respects  exemplary  in  conduct  and  character. 
But  this  may  have  caused  the  physical  decay  spoken  of  and 
the  premature  aging  of  the  man,  and  have  sown  the  seeds 
of  the  disease  which  finally  caused  his  death  at  the  age  of 
fifty-four  years. 

He  was  always  kindly  and  courteous  in  his  manner  pos- 
sessing a  natural  dignity  which  no  circumstances  seemed  to 


Personal  Recollections  of  Whiton  61 

disturb.  He  was  easily  approachable,  but  reticent  in  con- 
versation seemingly  never  seeking  acquaintances,  but  capa- 
ble of  forming  strong  friendships  with  those  with  whom  he 
had  become  thoroughly  acquainted. 

Upon  the  organization  of  the  separate  Supreme  Court,  in 
1853,  he  had  been  elected  chief  justice  by  the  people  of  the 
state  and  his  associates  were  Justices  A.  D.  Smith  and  Sam- 
uel Crawford,  the  latter  being  succeeded  June  1st,  1855,  by 
Hon.  Orsamus  Cole,  who  continued  on  the  bench  until  the 
death  of  Judge  Whiton. 

It  was  the  practice  of  that  court  for  the  chief  justice  to 
announce  the  decisions  of  the  court  orally  from  the  bench 
before  the  opinions  had  been  written  by  the  members  of  the 
court.  Usually  these  decisions  were  not  written  up  and  re- 
ported for  a  long  time  subsequent  to  their  announcement 
as  above  stated.  These  occasions  were  therefore  important 
to  the  bar  of  the  state  who  desired  to  keep  in  touch  with  the 
latest  decisions  of  the  court,  and  especially  those  who  had 
participated  in  the  argument  of  the  cases  upon  which  de- 
cisions were  anticipated,  and  usually  the  small  court  room 
was  well  filled  with  attorneys.  It  was  the  custom  of  the 
chief  justice  first  to  give  a  statement  of  the  facts  of  the 
case.  Often  these  facts  were  long,  complicated  and  in- 
volved. They  were  given  without  reference  to  any  notes 
or  memoranda.  He  would  state  them  in  their  logical  se- 
quence omitting  everything  immaterial  or  irrelevant,  or  if 
alluding  to  them  where  they  had  been  urged  by  counsel,  he 
would  merely  state  that  the  court  considered  them  imma- 
terial or  irrelevant  and  when  the  statement  of  facts  was 
concluded,  it  was  clearly  seen  what  the  opinion  of  the  court 
must  be.  This  marvelous  exhibition  of  memory  on  the  part 
of  the  chief  justice  was  always  a  matter  of  wonder  and  of 
deep  interest  to  the  bar,  and  none  of  those  who  listened  paid 


62  The  Story  of  a  Great  Court 

more  rapt  attention  than  his  associates  upon  the  bench.  If 
they  discovered  any  omissions  or  inaccuracies  in  his  state- 
ment, they  made  no  sign  by  word  or  look. 

It  was  on  one  of  these  occasions  that  the  late  Myron  H. 
Orton,  then  a  prominent  attorney  of  the  city  of  Madison, 
was  standing  leaning  upon  the  end  of  the  bench  listening 
intently  to  the  chief  justice  as  he  announced  the  decision 
in  a  case  in  which  Mr.  Orton  had  appeared  as  counsel  and 
in  which  the  decision  was  adverse  to  his  client.  Mr.  Orton, 
always  dramatic,  as  the  chief  justice  concluded,  said  in  a 
stage  whisper  which  would  be  heard  through  the  courtroom, 
"That  sounds  plausible."  This  caused  a  ripple  of  laughter 
among  the  attorneys  present  in  which  the  members  of  the 
court  including  the  chief  justice  joined. 

When  alone  or  walking  upon  the  streets  there  appeared 
about  Judge  Whiton  an  absentmindedness,  a  sort  of  faraway 
look  in  his  eyes  which  indicated  that  his  mind  was  pre- 
occupied. As  illustrating  this  absentmindedness  and  pre- 
occupation of  mind,  this  anecdote  was  told  me  by  the  late 
Judge  Thomas  Hood  with  whom  Judge  Whiton  always 
made  his  home  while  attending  to  his  official  duties  in  the 
city  of  Madison. 

There  was  a  resident  of  the  city,  Colonel  Wm.  B.  Slaugh- 
ter, a  man  of  culture,  a  good  conversationalist,  but  some- 
what of  the  character  of  Col.  Sellers  as  depicted  by  Mark 
Twain.  He  had  upon  a  farm  he  owned  a  bed  of  peat  and 
he  thought  there  was  millions  in  it,  and  he  sought  to  talk 
peat  to  every  man  whom  he  met  whether  he  expected  to 
induce  him  to  become  financially  interested  with  him  in 
the  development  of  his  peat  beds  or  not.  He  told  his  friend 
Judge  Hood  that  he  would  like  to  meet  the  chief  justice 
and  so  Judge  Hood  kindly  invited  him  to  his  house  to 


Personal  Recollections  of  Whiton  63 

dinner  to  meet  the  judge.  During  the  whole  time  that  he 
was  in  the  presence  of  the  judge,  he  discoursed  upon  the 
value  of  his  peat  beds,  what  could  be  done  with  them,  and 
the  money  that  could  be  made  out  of  them,  etc.  But  the 
chief  justice  made  no  response,  and  wishing  to  know  what 
impression  he  had  made  upon  him,  he  finally  said,  "Well, 
Chief  Justice,  what  do  you  think  of  peat?"  Justice  Whiton 
roused  himself  and  said.  "Pete  who?"  showing  he  had  been 
wholly  oblivious  of  the  hour's  talk  in  which  Col.  Slaughter 
had  indulged. 

When  presiding  in  court,  Judge  Whiton  was  an  attentive 
listener,  seldom  interrupting  the  argument  of  counsel  by 
question  or  comment,  and  attorneys  appearing  before  the 
court  were  encouraged  with  the  feeling  that  they  were  re- 
ceiving from  the  Chief  Justice  an  attentive,  impartial  and 
unprejudiced  hearing. 

Judge  W'hiton  was  not  an  easy  or  fluent  writer.  His 
opinions  as  found  in  the  Wisconsin  Reports  from  3d  Pinney 
to  the  8th  Wisconsin  were  generally  brief  and  directly  to 
the  point.  His  statements  were  clear  and  without  any  at- 
tempt at  elaboration  of  the  point  decided.  His  associate, 
Judge  Smith,  on  the  contrary,  was  an  easy  and  fluent  writer 
and  his  opinions  were  often  lengthy.  This  anecdote  is  told 
of  these  two  judges. 

A  case  had  been  assigned  to  Judge  Smith  to  write  up 
and  after  working  at  the  matter  for  some  time  he  came  to 
the  chief  justice  with  the  manuscript  of  the  opinion  which 
he  had  attempted  to  write  covering  page  after  page  of 
paper,  and  showing  it  to  Judge  Whiton  said,  "Chief  Justice, 
I  cannot  decide  this  case.  I  will  show  you  what  I  have 
written  upon  it."  Thereupon  Judge  Whiton  took  from  his 
desk  a  small  piece  of  note  paper  and  writing  upon  both 


64  Tne  Story  of  a  Great  Court 

sides  of  it,  handed  it  to  Judge  Smith  and  said,  "Judge,  what 
do  you  think  of  that?"  Judge  Smith,  after  reading  it,  re- 
plied, "It  seems  to  decide  the  case."  Whiton  replied,  "I 
thought  it  did." 

Berryman  in  his  "Bench  and  Bar  of  Wisconsin"  states 
that  Judge  Cole,  who  with  the  exception  of  Judge  Smith 
was  longer  associated  with  Judge  Whiton  upon  the  bench 
than  any  other  judge,  said  that  the  written  opinions  of 
Judge  Whiton  did  not  fairly  represent  his  powers ;  that  he 
was  much  stronger  in  the  consultation  room  than  with  the 
pen ;  and  that  some  of  his  discussions  with  his  judicial 
associates  in  the  privacy  of  that  room  were  very  remarkable 
for  their  learning  and  disclosed  him  as  a  man  of  extensive 
powers.  And  we  join  with  Mr.  Berryman  in  regretting 
that  failing  health  prevented  Judge  Cole  from  writing  a 
sketch  of  the  life  and  services  of  Judge  Whiton,  which  he 
had  at  one  time  intended  to  write. 

Judge  Smith  in  his  tribute  to  Judge  Whiton  at  the  meet- 
ing of  the  Milwaukee  bar  called  to  express  their  sorrow  at 

his  death,  said : 

"All  along  his  official  career  he  preserved  on  the  bench  and 
in  the  consultation  room,  a  strictness  of  propriety  which  can 
scarcely  be  equaled,  a  conscientiousness  which  never  wavered, 
a  depth  of  thought  and  comprehensiveness  of  the  subject-matter 
ever  present,  commanding  without  force,  controlling  without  in- 
trusion, clear  and  unassuming  in  his  high  office,  great  where 
he  thought  least  of  greatness,  but  great  only  wherein  man  can 
be  truly  great, — because  he  was  wise  and  good." 

A  friend  of  mine  who  was  present  at  the  time  when  the 
late  E.  G.  Ryan  spoke  of  the  then-attorney  general,  Hon. 
Experience  Estabrook,  as  the  "vagabond  attorney  general" 
said  that  Judge  Smith's  face  colored,  Judge  Cole  looked 
frightened,  but  there  was  not  the  least  appearance  of  ex- 
citement or  loss  of  the  usual  serenity  in  the  face  of  Judge 


Personal  Recollections  of  Whiton  65 

Whiton  and  that  while  dealing  with  the  offending  attorney 
his  face  showed  no  emotion  and  his  calmness  and  serenity 
was  the  same  as  upon  any  ordinary  occasion  or  transaction 
of  business  before  the  court. 

Those  who  remember  the  case  of  Ex  rel.  Bashford  v. 
Barstow,  will  recall  the  intense  excitement  in  this  state 
while  that  case  was  pending.  Mr.  Berryman  in  his  sketch 
of  Judge  Whiton  in  "Bench  and  Bar  of  Wisconsin"  before 
alluded  to  states  that  Judge  Cole  said  that  the  people  came 
armed  into  the  supreme  court  room  and  that  arms  were 
stored  in  the  basement  of  the  capitol  and  there  was  a  gen- 
eral apprehension  that  there  would  be  a  bloody  conflict  be- 
tween the  partisans  of  Bashford  and  Barstow,  and  that  in 
his,  Cole's,  opinion  there  would  have  been  such  a  conflict 
had  it  not  been  for  the  confidence  of  the  people  of  the 
state  in  the  integrity  of  Chief  Justice  Whiton  and  their 
feeling  that  he  could  not  be  brought  to  lend  himself  to 
a  partisan  decision. 

While  he  held  the  office  of  chief  justice  of  the  supreme 
court,  he  continued  his  residence  upon  his  farm  near  Janes- 
ville  and  was  never  in  Madison  except  while  attending  to 
his  official  duties  and  then  he  kept  closely  to  himself  and  to 
his  work.  He  was  seldom  seen  in  public  and  I  do  not  re- 
member during  the  several  years  that  I  knew  him  to  have 
seen  him  at  any  public  or  social  gathering.  And  I  have 
understood  that  at  his  home  in  Janesville  he  never  sought 
social  intercourse  with  his  fellows. 

The  late  Jonathan  E.  Arnold  at  the  bar  meeting  in  Mil- 
waukee before  alluded  to  said:  "During  the  long  session 
of  1840-41,  I  was  a  member  of  the  council  and  was  a  room- 
mate of  the  deceased.  Then  I  had  an  opportunity  to  know 
the  man,  and  the  high  impression  that  I  had  formed  of  him  ■ 
5 


66  The  Story  of  a  Great  Court 

was  fully  confirmed.  I  then  saw  the  clearness  of  his  in- 
tellect, the  kindness  of  his  heart,  and  the  simplicity  of  his 
character.  I  saw  something,  too,  of  that  peculiar  element 
of  his  life  which  was  not  misanthropy,  but  a  tinge  of 
melancholy  and  disappointment,  and  learned  something  of 
its  causes.  All  that  I  saw  and  knew  of  him,  but  served  to 
lead  me  more  highly  to  appreciate  his  abilities  and  his  un- 
blemished character." 

His  appearance  was  always  modest  and  unaggressive. 
Whatever  political  situations  he  occupied  were  never  sought 
but  accepted  by  him  upon  the  solicitation  of  his  fellow 
citizens  and  the  people  of  the  state.  At  the  time  of  his 
election  as  Chief  Justice,  the  state  was  Democratic  in  politics 
and  he  was  the  only  Whig  elected  to  the  bench,  Justices 
Smith  and  Crawford  having  been  the  Democratic  candidates 
for  associate  justices. 

He  was  to  me  and  has  always  remained  in  my  memory, 
the  ideal  judge. 


The  Booth  Case  67 


CHAPTER  VII 

THE    BOOTH    CASE    AND    THE    CONFLICT    WITH    THE    FEDERAL 

COURTS 

For  the  first  year  the  business  of  the  new  Court  was 
principally  of  a  routine  character,  involving  the  usual  con- 
troversies, public  and  private,  which  would  naturally  be 
expected  to  arise  in  a  new  state.  Important  questions  were 
impending,  however,  and  the  infant  Court  was  soon  to  be- 
come the  theater  of  a  great  political  drama,  which  was  to 
claim  the  attention  of  the  nation.  The  great  wave  of 
anti-slavery  sentiment  was  sweeping  over  the  north,  gather- 
ing strength  and  volume  with  every  passing  week  and  the 
irrepressible  conflict  between  freedom  and  bondage  was  on. 
In  order  to  fully  understand  how  the  Court  became  involved 
in  one  of  the  preliminary  struggles  in  this  historic  conflict 
it  will  be  necessary  to  take  a  backward  glance  at  federal 
legislation. 

When  our  forefathers  constructed  the  Federal  Constitu- 
tion, they  placed  therein  without  debate  or  serious  oppo- 
sition the  following  simple  provision:  "No  person  held  to 
service  or  labor  in  one  State  under  the  laws  thereof,  escaping 
into  another,  shall  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but  shall 
be  delivered  up  on  claim  of  the  party  to  whom  such  service 
or  labor  may  be  due."  x 

The  purpose  of  the  provision  is  very  apparent,  and  its 
necessity,  so  long  as  slavery  existed  under  the  protection  of 


HJ.  S.  Const.  Art.  IV.  Sec.  2. 


68  The  Story  of  a  Great  Court 

the  law  in  any  part  of  the  Union,  is  equally  apparent.  In 
pursuance  of  this  section,  Congress  passed  a  law  during  the 
administration  of  President  Washington,  providing  that  the 
owner  of  any  runaway  slave  might  arrest  him,  take  him  be- 
fore a  judge  of  either  the  Federal  or  State  Courts,  and 
prove  by  oral  testimony  or  by  affidavit  that  the  person 
arrested  owed  service  to  the  claimant  under  the  laws  of 
the  State  from  which  he  had  escaped,  and  thereupon  it  was 
made  the  duty  of  the  judge  to  give  a  certificate  that  such 
proof  had  been  made,  and  the  claimant  could  remove  the 
fugitive  to  the  State  from  which  he  had  escaped.  The  law 
also  provided  a  penalty  of  $500.00  for  obstructing  its  ex- 
ecution or  concealing  the  fugitive  with  knowledge  that  he 
was  such. 

Thus  the  law  remained  until  the  year  1850.  Meanwhile 
the  moral  sentiment  of  the  North  became  aroused ;  the  lib- 
erty party  was  organized,  the  underground  railroad  flour- 
ished, and  northern  men  and  women  refused  to  act  as  slave- 
catchers,  or  assist  in  perpetuating  the  crime  of  slavery.  In 
proportion  as  the  anti-slavery  feeling  grew  at  the  North,  the 
devotion  of  the  South  to  the  "divine  institution"  seemed  to 
become  more  determined ;  the  constant  stream  of  fugitives 
that  passed  through  the  Northern  States  to  Canada,  and 
the  evergrowing  difficulty  which  the  slave-holder  experi- 
enced in  attempting  to  assert  his  rights  in  his  human  chattels 
in  the  North,  alarmed  the  people  of  the  South,  and  they 
demanded  greater  guarantees  and  more  certain  remedies 
for  the  retaking  of  their  runaway  property.  Finally  an  act 
was  passed  in  1850  which  was  intended  to  meet  the  demands 
of  the  South.  It  placed  the  whole  machinery  for  the  re- 
caption of  runaway  slaves  exclusively  in  the  hands  of  the 
Federal  officers.     It  provided  for  a  hearing  before  a  United 


The  Booth  Case  69 

States  judge  or  court  commissioner,  and  made  the  certificate 
of  such  officer  conclusive ;  it  allowed  proof  to  be  made  by 
affidavit  on  the  part  of  the  claimant,  but  shut  out  the  tes- 
timony of  the  fugitive  entirely ;  it  increased  the  penalties 
for  resistance  to  the  enforcement  of  the  law  and  for  con- 
cealment of  the  fugitive,  and  contained  other  obnoxious  pro- 
visions. 

This  law  was  a  part  of  the  compromise  legislation  of  that 
year,  but,  like  most  compromises,  it  failed  to  satisfy  either 
party.  Instead  of  settling  the  matter,  it  simply  added  fuel 
to  the  flame  of  excitement  in  the  North,  and  nowhere  in 
the  West  perhaps  did  the  excitement  run  higher  than  in 
Wisconsin.  The  immigration  into  this  State  from  the  New 
England  States  and  New  York  was  very  heavy  during  the 
early  fifties,  and  the  immigrants  brought  with  them  their 
love  of  freedom  and  hatred  of  slave-catchers.  On  the  19th 
of  May,  1848,  Sherman  M.  Booth  arrived  at  Milwaukee. 
He  was  young  in  years,  but  he  had  stumped  Connecticut 
for  the  Liberty  party  for  six  successive  years.  He  was  an 
enthusiastic,  perhaps  a  fanatical,  abolitionist,  and  he  came 
West  to  further  the  cause  that  he  loved  by  editing  a  news- 
paper. The  "American  Freeman"  was  then  being  published 
in  Milwaukee,  and  Booth  purchased  a  half  interest  in  it  and 
became  its  editor.  He  changed  its  name  to  the  "Wisconsin 
Freeman,"  and  after  the  Freesoil  party  was  organized  the 
name  was  again  changed  to  the  "Free  Democrat,"  and  he 
became  the  sole  proprietor.  For  several  years  it  was  the 
only  out  and  out  abolition  paper  in  the  State.  Probably  it 
made  up  in  quality  for  what  it  lacked  in  quantity.  The 
times  were  exciting,  and  Booth  contributed  his  share  to  the 
excitement  without  difficulty.  After  the  compromise  acts 
of  1850,  his  denunciations  of  the  slave  power  were  more 


70  The  Story  of  a  Great  Court 

vitriolic  than  before.  The  inevitable  conflict  was  approach- 
ing faster  than  any  one  knew  and  Booth  was  one  of  those 
who  were  hurrying  it  on. 

In  the  spring  of  the  year  1852  a  negro  slave  named  Glover 
ran  away  from  his  master,  one  Garland,  who  resided  near 
St.  Louis,  and  came  to  Wisconsin.  He  stopped  at  Racine 
and  found  employment  in  a  mill  about  four  miles  from  the 
city.  Here  he  lived  until  March,  1854.  In  some  manner 
Garland  ascertained  his  whereabouts  and  came  to  Wisconsin 
early  in  March  to  reclaim  his  property.  He  made  the 
requisite  complaint  before  the  late  Winfield  Smith,  United 
States  Court  Commissioner  at  Milwaukee,  and  a  warrant 
was  issued  for  the  arrest  of  the  negro.  A  deputy  marshal 
of  the  United  States  proceeded  to  Racine  with  Garland  and 
several  assistants  and  during  the  evening  of  March  10th 
forced  an  entrance  to  Glover's  cabin,  knocked  him  down, 
bound  and  handcuffed  him  and  put  him  in  a  wagon,  drove 
rapidly  to  Milwaukee  and  lodged  him  in  the  county  jail. 
The  news  of  the  brutal  arrest  was  not  long  in  reaching 
Racine,  and  the  excitement  in  that  thriving  city  ran  high. 
In  those  days  the  court  house  meeting  was  the  universal 
remedy  for  every  public  ill.  The  use  of  the  court  house  was 
free  to  all.  Every  man  was  an  orator,  and  resolutions  of 
mighty  sound  and  startling  import  were  easily  drawn  and 
enthusiastically  passed.  So  in  the  early  morning  of  Satur- 
day, March  nth,  the  court  house  bell  at  Racine  rang 
vociferously  and  the  people  hurried  to  the  temple  of  justice. 
Fiery  speeches  were  made  and  resolutions  were  passed.  By 
these  resolutions  the  arrest  of  Glover  was  denounced  as  a 
brutal  outrage,  and  a  fair  and  impartial  jury  trial  of  Glover 
in  this  State  was  demanded ;  the  citizens  also  resolved  that 
they   would  attend   in  person   to   secure   Glover's   release, 


The  Booth  Case  71 

adopting  as  their  motto  the  golden  rule;  and  further  that 
"inasmuch  as  the  Senate  of  the  United  States  has  repealed 
all  compromises  heretofore  adopted  by  Congress,  we,  as 
citizens  of  Wisconsin,  are  justified  in  declaring,  and  hereby 
declare,  the  slave  catching  law  of  1850  disgraceful  and  also 
repealed." 

The  pioneers  of  Wisconsin  were  men  of  high  courage  and 
prompt  action.  These  resolutions  prove  the  fact.  None 
other  would  attempt  to  repeal  an  act  of  the  Congress  of  the 
United  States  after  a  debate  of  half  an  hour  at  a  court 
house  meeting.  A  committee  of  one  hundred  citizens  was 
appointed  at  the  meeting  to  see  that  the  resolutions  were 
carried  out,  and  the  committee  departed  for  Milwaukee  by 
steamboat  early  in  the  afternoon.  Meanwhile  history  was 
being  rapidly  made  in  Milwaukee.  The  news  of  the  arrest 
came  to  Booth  by  telegraph  early  in  the  morning  of  Satur- 
day, and  he  at  once  consulted  with  Gen.  James  H.  Paine 
and  his  son,  Byron  Paine,  who  were  then  practicing  lawyers 
in  Milwaukee,  as  to  the  legal  measures  to  be  taken  to  free 
Glover;  a  writ  of  habeas  corpus  was  agreed  upon  as  the 
proper  remedy,  and  it  was  procured  from  Judge  Charles  E. 
Jenkins,  of  the  County  Court.  But  here  arose  a  serious 
difficulty.  Neither  the  sheriff  nor  the  United  States  marshal 
would  obey  the  writ  and  produce  the  prisoner,  because  they 
claimed  that  the  prisoner  was  within  the  exclusive  juris- 
diction of  the  United  States  Court.  This  refusal  created 
great  excitement  and  indignation ;  a  meeting  was  called  in 
the  court  house  square  at  two  o'clock  in  the  afternoon; 
men  rode  through  the  streets  on  horses  summoning  "free- 
men" to  the  meeting.  It  was  largely  attended  and  was 
addressed  by  fiery  and  eloquent  speakers,  and  as  a  result 
a  rush  was  made  for  the  jail  at  about  six  o'clock  in  the 


72  The  Story  of  a  Great  Court 

evening-,  the  door  battered  down,  and  Glover  taken  out  and 
hurried  away. 

The  following  description  of  the  affair  contained  in  the 
weekly  Racine  Advocate  of  March  20,  1854,  may  prove  in- 
teresting : 

"A  committee  of  twenty-five  of  the  citizens  of  Milwaukee  was 
appointed  a  committee  of  vigilance  and  protection.  A  committee 
of  two  was  also  appointed  to  wait  upon  the  sheriff  to  see  if  he 
still  persisted  in  refusing  to  serve  the  writ.  This  refusal  being 
persisted  in,  measures  were  immediately  taken  to  see  what  steps 
were  necessary  to  see  that  the  'Republic  received  no  detriment* 
and  that  the  laws  of  the  land  were  enforced.  The  citizens  of 
Milwaukee,  on  this  notice  being  given,  assembled  to  the  number 
of  five  thousand  in  the  court  house  square,  where  they  were 
addressed  by  the  most  eloquent  and  influential  members  of  the 
Milwaukee  bar.  The  excitement  continued  and  spread  to  all 
parts  of  the  city.  At  five  o'clock  the  delegation  from  this  city 
arrived  at  Milwaukee  and  were  escorted  to  the  court  house 
square,  where  the  citizens  of  Milwaukee  were  listening  to  ad- 
dresses upon  the  subject  matter.  The  military  had  been  ordered 
out,  but  did  not  appear  on  the  streets.  At  six  o'clock  the  friends 
of  law  and  order  came  to  the  conclusion  that  it  would  be  unsafe, 
as  well  as  eminently  wicked,  for  a  human  being  to  be  locked 
up  in  a  jail  over  the  Sabbath  against  whom  no  crime  had  been 
alleged;  accordingly  a  courier  was  despatched  for  a  team,  and  as 
the  court  house  bell  rang  the  tocsin  of  liberty  the  writ  of  'open 
sesame'  was  enforced,  while  the  glorious  sun  sank  smilingly  in 
the  west  as  he  shed  his  rays  upon  the  spires  of  Milwaukee  for 
the  11th  day  of  March,  1854;  a  glorious  prelude  to  the  coming 
day  of  rest.  The  doors  of  the  prison  shook  as  though  another 
Peter  were  within,  and  the  willing  cell  yielded  up  its  victim 
to  the  fresh  light  and  air  of  God's  glorious  earth.  The  negro 
waved  his  hat  as  he  mounted  the  wagon  in  return  to  the  waving 
of  hats  and  joyous  shouts  which  arose  from  that  vast  crowd  of 
freeman  who  said  that  the  Milwaukee  jail  could  not  be  used  for 
the  confinement  of  men  who  had  committed  no  crime." 

The  mixture  of  biblical  allusion,  "fine  writing"  and  satire 
in  this  account  is  certainly  amusing,  if  not  effective. 


The  Booth  Case  73 

Booth  describes  his  own  share  in  the  rescue  in  the  course 
of  an  address  delivered  by  him  in  Madison,  March  12,  1897, 
as  follows : 

"In  riding  through  the  streets  of  Milwaukee  to  call  a  public 
meeting,  I  did  not  cry  as  was  reported  and  sworn  to,  'Freemen 
to  the  rescue.'  A  forcible  rescue  was  never  my  purpose;  I  aimed 
simply  to  secure  for  Glover  a  fair  trial  and  competent  counsel, 
and  in  calling  the  meeting  I  used  but  two  forms  of  speech,  viz.: 
'All  Freemen,'  or  'AH  citizens  who  are  opposed  to  being  made 
slaves  or  slave  catchers  turn  out  to  a  meeting  in  the  court  house 
square  at  two  o'clock,'  the  only  variation  being  that  I  sometimes 
used  the  word  'men'  and  sometimes  the  word  'citizens'.  *  *  * 
The  immediate  cause  of  the  rescue  was  the  speech  and  report  of 
C.  K.  Watkins,  chairman  of  the  committee  to  wait  on  Judge 
Miller  and  inquire  if  the  writ  of  liberty  would  be  obeyed.  He 
reported  that  Judge  Miller  said,  'No  power  on  earth  could  take 
him  from  his  jurisdiction.'  He  (Watkins)  expatiated  on  the 
tyranny  of  the  judge  and  the  hardship  of  imprisoning  Glover 
over  the  Sabbath;  I  had  invited  the  Racine  delegation  to  meet 
our  committee  at  the  American  House  for  consultation  and  was 
about  to  start  when  I  heard  a  shout  and  saw  a  rush  for  the 
jail  and  anticipated  the  result.  I  went  up  to  Dr.  Wolcott  and 
Byron  Paine,  standing  on  the  court  house  steps,  and  said  to 
them  as  the  crowd  was  bringing  Glover  out,  that  I  regretted  the 
act,  that  it  was  a  bad  precedent  and  the  people  would  not  dis- 
criminate between  this  case  and  one  in  which  a  prisoner  was 
rightfully  held.  To  personal  appeals  of  Democrats  before  the 
first  meeting  was  opened,  'Mr.  Booth,  let  us  take  him  out,'  I 
answered,  'No,  we  must  use  legal  and  peaceful  methods,'  and 
during  the  whole  of  this  scene  I  counselled  against  violence,  pub- 
licly and  privately.  Yet  in  all  the  histories  of  this  case,  in 
newspapers,  pamphlets  and  books,  I  am  represented  as  riding 
through  the  streets  of  Milwaukee  shouting  'Freeman  to  the 
rescue.'  *  *  *  I  respectfully  decline  the  honor  of  a  deed 
I  never  performed.  The  only  responsibility  attaching  to  me  for 
the  rescue  of  Glover  is  that  I  helped  create  a  strong  public  sen- 
timent against  the  fugitive  slave  act  and  called  the  meeting  to 
protect  the  legal  rights  of  Glover  and  give  him  a  fair  trial.  If, 
when  assembled  for  peaceable  and  lawful  purposes,  the  course 
of  the  judge  and  his  bailiffs  excited  the  prople  to  take  Glover  out 
of  jail  against  my  advice,  I  was  guiltless  of  the  rescue." 


74  The  Story  of  a  Great  Court 

Glover  made  good  his  escape  and  was  never  recaptured. 
The  great  "writ  of  freedom"  had  failed  indeed,  but  a  power 
more  effective  than  any  writ,  the  righteous  wrath  of  an 
outraged  people,  had  accomplished  the  purpose.  Now  com- 
menced the  legal  battle  which  was  destined  to  array  court 
against  court,  and  last  until  the  booming  guns  of  Sumter 
announced  the  coming  downfall  of  slavery. 

While  the  negro  had  thus  been  permanently  released, 
Booth  still  remained  at  his  post,  and  the  temptation  to  bring 
down  upon  his  head  the  penalties  of  the  law  which  he  had 
set  at  defiance  was  too  great  to  be  resisted.  He  was  ar- 
rested for  aiding  in  the  escape  of  a  fugitive  slave,  was 
examined  before  a  United  States  Commissioner,  and  bound 
over  for  trial  before  the  United  States  Court.  Bail  was  Fur- 
nished, but  his  bondsmen  soon  surrendered  him  at  his  own 
request,  and  the  Court  Commissioner  by  warrant  committed 
him  to  the  custody  of  the  United  States  Marshal.  Probably 
this  surrender  was  for  the  purpose  of  instituting  the  legal 
proceedings  which  now  began  in  the  State  Court.  Byron 
Paine  was  then  a  young  lawyer  in  Milwaukee,  not  yet 
twenty-seven  years  of  age.  He  had  come  to  Milwaukee 
with  his  father,  James  H.  Paine,  some  seven  years  before. 
The  father  was  a  man  of  ability,  a  lawyer  of  some  prom- 
inence, and  so  strong  and  pronounced  an  abolitionist  that 
he  found  it  necessary,  or  at  least  desirable,  to  remove  from 
Painesville,  Ohio,  to  Milwaukee.  So  Byron  drank  in 
abolitionism  with  his  mother's  milk.  Possessed  of  a  rare 
power  of  language  and  literary  composition,  he  wrote  much 
for  Booth's  paper,  the  Free  Democrat,  while  preparing  for 
the  bar.  He  had  not  attained  great  eminence  in  the  pro- 
fession, though  his  capabilities  were  known  by  some  and  his 
sterling  honesty  and  courage  by  many.     The  time  had  now 


The  Booth  Case  75 

come  when  he  was  to  demonstrate  his  abilities  and  he  recog- 
nized the  opportunity  and  grasped  it.  His  whole  soul  was  in 
the  cause ;  he  entered  the  combat  as  did  the  knights  of  old 
who  fought  for  the  holy  sepulchre.  It  was  to  him  the  cause 
of  God  as  well  as  the  cause  of  freedom.  Upon  the  day  fol- 
lowing the  commitment  of  Booth  to  the  custody  of  the 
marshal,  application  was  made  to  Judge  Smith  at  chambers 
for  a  writ  of  habeas  corpus  directed  to  the  marshal.  The 
writ  was  allowed,  the  marshal  claimed  justification  under 
his  warrant,  but  after  argument  by  Mr.  Paine  and  Mr.  J. 
R.  Sharpstein  on  the  other  side,  Mr.  Justice  Smith  in  a  long 
and  able  opinion  discharged  the  prisoner  on  the  ground  that 
Congress  was  given  no  power  by  the  United  States  Consti- 
tution to  legislate  on  the  subject,  but  that  the  clause  in  the 
Constitution  providing  that  fugitive  slaves  should  be  given 
up  to  the  owner  was  simply  a  command  to  the  State  and 
to  be  enforced  by  the  states  alone.2 

This  decision  was  received  by  the  partisans  of  Booth  in 
all  parts  of  the  State  with  great  enthusiasm.  The  court 
house  meeting  was  immediately  reconvened  at  Racine,  and 
again  passed  resolutions.  It  will  be  interesting  to  note  their 
tone — they  are  as  follows : 

"Resolved,  That  we  hail  with  unmingled  satisfaction  the  de- 
cision of  Judge  Smith  by  which  the  constitution  is  vindicated 
and  restored  to  its  original  purity; 

"Resolved,  That  Judge  Smith's  construction  is  the  true  and 
undoubted  meaning  of  the  Constitution  as  left  by  the  hands  of 
the  fathers  who  framed  it,  that  the  reasoning  by  which  he  ar- 
rived at  that  conclusion  is  unanswerable  and  places  the  Judge  in 
the  front  rank  of  constitutional  jurists; 

"Resolved,  That  it  is  'holy  light'  when  compared  with  the 
muddy  and  discrepant  opinions  of  the  United  States  Court  in  the 
famous  Prigg  case,  reported  in  16th  Peters; 

23  Wis.   Rep.    *1. 


76  The  Story  of  a  Great  Court 

"Resolved,  That  with  him  we  sincerely  and  solemnly  helieve 
that  the  last  hope  of  a  free  representative  government  rests  upon 
the  state  sovereignties  and  fidelity  of  state  officers  to  their  double 
allegiance  to  the  state  and  federal  government; 

'•Resolved,  That  Judge  Smith  has  manfully  and  ably  fulfilled 
the  trust  of  double  allegiance  which  the  people  of  Wisconsin 
committed  to  him. 

The  case  was  immediately  taken  before  the  full  bench  of 
the  Supreme  Court  by  writ  of  certiorari,  and  heard  at  the 
June  term,  1854.  Upon  this  hearing,  Mr.  Paine  again  ap- 
peared for  Booth,  and  he  then  met  a  foeman  worthy  of  his 
steel,  one  who  like  himself  was  destined  in  after  years  to 
add  lustre  to  that  very  bench,  Edward  G.  Ryan.  Paine's 
speech  has  been  preserved  in  pamphlet  form,  and  it  was 
worthy  of  the  occasion  and  the  man.  He  argued  that  the 
fugitive  slave  law  was  unconstitutional  on  three  grounds : 
(1)  because  Congress  had  no  power  to  legislate  upon  the 
subject  at  all,  being  the  ground  taken  by  Judge  Smith  in  his 
opinion;  (2)  because  it  provided  that  a  man  might  be  re- 
duced to  a  state  of  slavery  without  a  trial  by  jury,  and 
(3)  because  it  vested  judicial  power  in  Court  Commissioners 
contrary  to  the  terms  of  the  Constitution,  which  provided 
for  the  vesting  of  such  power  in  certain  Courts.  The  Court 
affirmed  the  order  of  Justice  Smith  discharging  Booth  from 
imprisonment,  July  19,  1854.3  The  affirmance  was  unan- 
imous, but  the  judges  differed  on  the  ground  upon  which 
the  decision  should  be  based.  Chief  Justice  Whiton  ad- 
mitted that  it  was  finally  established  by  the  case  of  Prigg 
v.  Pennsylvania,  16  Peters,  640,  that  the  United  States  had 
power  to  legislate  on  the  subject  of  fugitive  slaves,  but  he 
held  that  the  act  was  unconstitutional  for  the  reason  that  it 
vested  judicial  powers  in  Court  Commissioners,  and  because 

33  Wis.  *49. 


The  Booth  Case  77 

it  denied  to  the  fugitive  a  jury  trial.  Judge  Smith  retained 
his  views  as  to  the  lack  of  power  in  Congress  to  pass  any 
law  on  the  subject,  and  concurred  with  the  Chief  Justice  in 
his  objections  to  the  law ;  while  Justice  Crawford  dissented 
from  the  conclusion  of  the  majority,  holding  the  law  to  be 
valid,  but  agreeing  in  the  result  because  the  commitment 
did  not  on  its  face  show  that  the  case  was  within  the  law. 

The  legal  victory  thus  won  by  Byron  Paine  seemed  to  be 
complete.  He  had  met  in  the  highest  tribunal  of  the  State 
one  of  the  greatest  men  of  the  profession,  and  had  utterly 
routed  him.  The  decision  of  the  Court  touched  and  thrilled 
the  popular  heart,  and  the  beardless  champion  of  human 
freedom  was  unquestionably  the  hero  of  the  hour.  Nor  was 
the  enthusiasm  over  the  victory  confined  to  the  narrow 
limits  of  the  State  of  Wisconsin.  The  contest  had  been 
eagerly  watched  by  leading  abolitionists  in  all  parts  of  the 
country,  and  the  victory  was  hailed  by  them  with  delight 
and  the  youthful  victor  was  overwhelmed  with  praise. 

Charles  Sumner  wrote  on  the  5th  of  August,  1854 : 

Washington,  Aug.   5th,  1854. 

"*  *  *  I  congratulate  you  upon  your  magnificent  effort 
which  does  honor  not  only  to  your  State  but  to  your  country; 
the  argument  will  live  in  the  history  of  this  controversy.  God 
grant  that  Wisconsin  may  not  fail  to  protect  her  own  right  and 
the  rights  of  her  citizens  in  the  emergency  now  before  her.  To 
her  belongs  the  lead  which  Massachusetts  should  have 
taken.     *     *     *" 

Wendell  Phillips  thus  congratulated  him: 

Milwaukee,  Nov.  24th. 
"Dear  Sir: 

I  hoped  to  have  met  you  last  evening  to  tell  you  with  what 
unbounded  delight  I  read  your  argument  in  the  Booth  case. 
You  know  you  have  many  companions  in  the  pathway  of  that 
effort;  but  I  think  none  excels  you  in  the  completeness  and 
force  with  which  the  points  are  presented  and  some  of  the  views 


78  The  Story  of  a  Great  Court 

with  which  you  sustain  points  made  by  others  are  strikingly 
original.  I  cannot  see  that  you  leave  anything  further  to  be 
argued.     *     *     *" 

But  the  litigation  had  not  ended;  it  was  in  fact  but  just 
begun.  The  discharge  from  confinement  did  not  stop  the 
prosecution  of  Booth  in  the  United  States  Court.  In  July, 
1854,  Mr.  Booth  and  one  John  Rycraft  were  finally  indicted 
for  violation  of  the  fugitive  slave  law,  and  were  arrested 
on  warrants  to  answer  the  indictments.  Booth  again  ap- 
plied for  a  writ  of  habeas  corpus  to  the  Supreme  Court,  but 
it  was  unanimously  denied,  not  because  there  had  been  any 
change  of  view  in  the  minds  of  the  justices  on  the  main 
question,  but  because,  the  United  States  Court  having  ob- 
tained jurisdiction  of  the  case  and  the  prisoner  being  held 
by  apparently  lawful  process  issued  by  such  Court,  (and  not 
by  a  Court  Commissioner),  no  other  Court  should  inter- 
fere and  endeavor  to  take  the  decision  of  the  question  of 
jurisdiction  away  from  that  Court.  This  is  the  familiar  rule 
of  comity,  by  which,  when  the  jurisdiction  of  a  matter  has 
been  acquired  by  one  Court,  another  Court  of  concurrent 
jurisdiction  will  not  interfere.4 

Booth  and  Rycraft  were  now  tried  in  the  United  States 
Court,  found  guilty,  and  sentenced  to  a  short  term  of  im- 
prisonment in  the  county  jail  and  to  pay  a  fine  of  $1,000.00. 
This  conviction  aroused  intense  feeling  all  over  the  State. 
Indignation  meetings  were  held  in  Milwaukee  and  in  many 
of  the  smaller  places,  most  of  which  passed  resolutions  de- 
nouncing the  conviction,  and  some  going  so  far  as  to  de- 
mand armed  resistance.  Again  a  writ  of  habeas  corpus  was 
issued  from  the  Supreme  Court  and  the  prisoners  were 
finally  discharged  in  February,  1855,  the  Court  deciding  that 


43  Wis.  *145. 


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Judge   Wliiton   in   the   I'.ootli   C;ise,  3  Wis.      I 


The  Booth  Case  79 

it  could  review  the  question  of  the  jurisdiction  of  the  United 
States  Court  upon  habeas  corpus  and  could  discharge  the 
prisoners,  even  when  the  Federal  Court  had  tried  the  case 
and  passed  judgment  upon  them.5  The  position  was  an 
extreme  one  and  the  judges  recognized  the  fact.  It  meant 
a  direct  clash  with  the  Federal  Courts,  but  the  judges  did 
not  falter.     Justice  Smith  said  in  a  note : 

"This  Court  has  no  disposition  to  interfere  with  the  criminal 
jurisdiction  of  the  District  Court  of  the  United  States.  Unless 
that  Court  proceeds  within  the  limits  which  the  constitution  and 
laws  of  Congress  have  prescribed,  its  acts  are  a  nullity;  its 
jurisdiction  is  always  open  to  question  and  must  affirmatively 
appear;  if  jurisdiction  be  wanting,  its  process,  judgments  and 
decrees  are  void.  Were  it  otherwise,  that  Court  might  proceed 
to  indict,  convict  and  punish  for  common  assault,  libel,  breaches 
of  the  peace,  and  so  forth,  imprison  our  citizens  at  its  own  will 
and  pleasure,  administer  the  whole  common  law  code  of  offenses 
and  punishments,  from  whose  judgment  there  could  be  no  appeal 
and  whose  prison  doors  no  earthly  power  could  unlock.  Such 
doctrine  is  monstrous.  We  have  not  yet  reached  the  point  of 
submission."  « 

The  note  of  defiance  here  rings  out  with  unmistakeable 
clearness  ;  it  was  magnificent,  but  it  was  not  good  law. 

The  issue  was  too  important  to  rest  without  final  decision 
by  the  Court  of  last  resort,  and  writs  of  error  were  sued  out 
of  the  Supreme  Court  of  the  United  States  by  the  marshal 
to  review  both  judgments  of  the  Supreme  Court  of  Wis- 
consin discharging  Mr.  Booth.  To  the  first  writ  issued  in 
October,  1854,  return  was  made  without  objection,  but  when 
the  second  writ  was  issued  and  served  in  June,  1855,  the 
justices  of  the  Supreme  Court  directed  the  clerk  to  make 
no  return  to  the  writ  on  the  ground  that  no  writ  of  error 
could  run  from  the  United  States  Supreme  Court  to  the 


53  Wis.  *157.  «3  Wis.  *157.     See  page  *217. 


80  The  Story  of  a  Great  Court 

Supreme  Court  of  a  State,  and  that  the  act  of  Congress 
purporting'  to  authorize  such  a  proceeding  was  unconstitu- 
tional. This  was  going  a  step  further  than  before.  By  the 
previous  action,  the  Court  had  only  asserted  its  power  to 
inquire  into  and  decide  for  itself  the  question  of  the  juris- 
diction of  a  Federal  Court,  and  the  validity  of  its  judgment; 
by  this  latter  act  it  asserted  in  legal  effect  that  its  decision 
was  final  and  supreme  and  could  not  be  reviewed  by  any 
Court  on  earth.  The  refusal  to  return  the  record  in  obe- 
dience to  the  writ  could  not  prevent  the  consideration  of  the 
case  by  the  United  States  Supreme  Court,  but  it  did  delay 
such  consideration. 

The  Attorney  General  of  the  United  States  (Jeremiah  S. 
Black)  had  procured  a  certified  copy  of  the  record,  and 
when  it  finally  appeared  that  no  return  would  be  made  to 
the  writ,  the  Court  ordered  that  this  copy  be  filed  with  the 
same  effect  as  if  returned  by  the  clerk,  and  the  cases  were 
finally  reached  in  January,  1859.  Mr.  Black  appeared  and 
argued  the  case  for  the  United  States,  but  no  counsel  ap- 
peared on  the  other  side.  Booth  sent  to  the  Court  a  copy 
of  the  pamphlet  argument  of  Mr.  Paine  with  copies  of  the 
opinions  of  the  justices  of  the  Supreme  Court  of  Wisconsin, 
and  submitted  his  case  on  these  without  argument.  The 
cases  were  decided  and  the  judgments  reversed  March  7, 
1859,  in  an  opinion  by  Chief  Justice  Taney.7  The  issue  was 
of  supreme  importance,  and  the  opinion  was  one  worthy  of 
the  issue  and  of  the  distinguished  jurist  who  wrote  it. 

It  has  been  the  fashion  to  belittle  and  blacken  the  memory 
of  Chief  Justice  Taney  by  falsely  attributing  to  him  the 
statement  that  a  negro  had  no  rights  which  white  men  were 


7  21  How.    (62  U.   S.)    506. 


The  Booth  Case  81 

bound  to  respect.  Happily,  time  has  to  a  great  extent  cor- 
rected this  great  injustice,  and  there  are  few  now  who  do 
not  acknowledge  the  purity  and  probity  of  the  character  of 
this  great  jurist,  and  admit  that  he  stands  among  the  very 
greatest  of  the  great  men  who  have  adorned  the  Supreme 
Bench  of  the  United  States.  While  the  opinion  in  this  case 
is  of  some  length,  the  Chief  Justice  stated  the  issue  and  its 
inevitable  conclusion  in  a  few  sentences  so  clearly  that  I 
cannot  refrain  from  quoting  them. 

"If  the  judicial  power  exercised  (by  the  Supreme  Court  of 
Wisconsin)  in  this  instance  has  been  reserved  to  the  States,  no 
offense  against  the  laws  of  the  United  States  can  be  punished  by 
their  own  courts  without  the  permission  and  according  to  the 
judgment  of  the  Court  of  the  State  in  which  the  party  happens 
to  be  imprisoned;  for  if  the  Supreme  Court  of  Wisconsin  pos- 
sessed the  power  it  has  exercised  in  relation  to  offenses  against 
the  action  of  Congress  in  question,  it  necessarily  follows  that  they 
must  have  the  same  judicial  authority  in  relation  to  any  other 
law  of  the  United  States,  and  consequently  their  supremacy  and 
controlling  power  would  embrace  the  whole  criminal  code  of  the 
United  States  and  extend  to  offenses  against  our  revenue  laws 
or  any  other  law  intended  to  guard  the  different  departments 
of  the  general  government  from  fraud  or  violence,  and  it  would 
embrace  all  crimes  from  the  highest  to  the  lowest,  including 
felonies,  which  are  punished  with  death,  as  well  as  misdemeanors 
which  are  punished  by  imprisonment.  And  if  this  power  is 
possessed  by  the  Supreme  Court  of  the  State  of  Wisconsin,  it 
must  belong  equally  to  every  other  State  in  the  Union  when  the 
prisoner  is  within  its  territorial  limits;  and  it  is  very  certain 
that  the  State  courts  would  not  always  agree  in  opinion,  and  it 
would  often  happen  that  an  act  which  was  admitted  to  be  an 
offense  and  justly  punished  in  one  State,  would  be  regarded  as 
innocent  and  indeed  as  praiseworthy  in  another.  It  seems  to  be 
hardly  necesesary  to  do  more  than  state  the  result  to  which 
these  decisions  of  the  State  Courts  must  necessarily  lead.  It  is, 
of  itself,  a  sufficient  and  conclusive  answer;  for  no  one  will  sup- 
pose that  a  government  which  was  now  lasted  nearly  seventy 
years,  enforcing  its  laws  by  its  own  tribunals  and  preserving  the 
6 


82  The  Story  of  a  Great  Court 

Union  of  the  States,  could  have  lasted  a  single  year  or  fulfilled 
the  high  trusts  committed  to  it  if  offenses  against  its  laws  could 
not  have  been  punished  without  the  consent  of  the  State  in 
which  the  culprit  was  found." 

These  propositions  seem  now  to  be  very  plain  and  simple 
truths,  but  not  so  in  1859.  The  judgment  of  reversal  was 
followed  by  a  storm  of  popular  indignation  in  Wisconsin, 
which  will  be  fully  described  in  its  proper  place.  It  is  suf- 
ficient now  to  say  that  in  the  judicial  elections  of  1855,  1857, 
1859  and  i860  the  question  whether  the  Booth  case  was 
rightly  decided  and  should  be  adhered  to  formed  practically 
the  sole  issue,  and  that  notwithstanding  their  radically  dif- 
ferent positions  in  that  case  both  Justices  Crawford  and 
Smith  lost  their  seats  by  reason  of  such  positions. 

The  ordinary  litigation  which  came  before  the  Court  dur- 
ing Judge  Crawford's  brief  term  of  two  years  was  not  great 
in  volume,  yet  some  important  fundamental  propositions 
took  their  places  in  the  jurisprudence  of  the  young  state. 

One  of  the  most  important  cases  was  the  Blossom  case, 
already  referred  to,  where  it  was  held  that  the  Supreme 
Court  had  been  endowed  by  the  constitution  with  original 
jurisdiction  in  cases  public!  juris,  involving  the  prerogatives 
and  franchises  of  the  state  and  the  liberties  of  the  people.8 
The  great  importance  of  this  principle  and  its  value  to  the 
people  of  the  state  was  later  clearly  demonstrated  in  the 
railroad  cases  9  and  the  other  cases  of  absorbing  public  in- 
terest and  importance  which  have  followed  that  case.  Had 
the  Court  been  shorn  of  this  great  power  by  a  narrow  con- 
struction of  the  grant  of  power  contained  in  Section  3  of 
Article  VII  of  the  constitution  the  result  would  have  been 


s  Atty.  Genl.  v.  Blossom,  1  Wis.  *317. 
0  Atty.  Genl.  v.  R.  R.  Co.'s,  35  Wis.  425. 


The  Booth  Case  83 

to  practically  deprive  the  public  of  redress  or  relief  in  many 
great  emergencies,  when  only  prompt  action  by  the  court 
of  last  resort  could  be  effective. 

Among  the  more  important  legal  principles  laid  down 
during  this  period  are  the  following  :  that  a  ministerial  officer 
is  protected  in  the  execution  of  a  writ  regular  on  its  face 
and  issued  by  a  competent  tribunal,  so  long  as  he  has  no 
knowledge  of  any  lack  of  jurisdiction  on  the  part  of  the 
tribunal  which  issued  it ; 10  that  repeal  by  implication  is  not 
favored  in  the  law  and  that  on  the  contrary  courts  are  bound 
to  uphold  the  prior  law  if  by  reasonable  rules  of  construction 
the  two  acts  may  well  subsist  together ; "  that  a  deed,  ab- 
solute on  its  face,  will  be  held  a  mortgage  whenever  the  real 
transaction  is  a  loan  of  money  and  the  deed  is  given  as 
security  for  its  repayment;12  that  the  right  of  trial  by  jury 
secured  by  the  constitution  contemplates  a  jury  of  twelve 
men  as  understood  at  common  law  and  not  of  any  less  num- 
ber ; 13  that  in  ejectment  the  plaintiff  must  recover,  if  at  all, 
on  the  strength  of  his  own  title,  and  that  there  may  be  dedi- 
cation of  lands  to  public  use  by  parol ; 14  that  a  deed  obtained 
by  duress  is  void,  not  only  as  between  the  original  parties, 
but  as  to  a  subsequent  purchaser  with  notice ; 15  that  a 
riparian  owner  upon  a  meandered  stream  owns  to  the 
thread  of  the  stream,  subject  to  the  public  easement; 16  that 
a  public  nuisance  may  be  enjoined  at  the  suit  of  a  private 
person  if  he  suffer  a  private  or  special  injury  therefrom;17 


10  Sprague  v.  Birchard,  1  Wis.  *457. 
«  Atty.  Genl.  v.  Brown,  1  Wis.  *513. 
12  Rogan  v.  Walker,  1  Wis.  *527. 
"Norval  v.  Rice,  2  Wis.  *22. 
14  Gardner  v.  Tisdale,  2  Wis.  *153. 
is  Brown   v.  Peck,  2  Wis.   *261. 
is  Jones  v.  Pettibone,  2  Wis.  *308. 
it  Walker  v.  Shepardson,  2  Wis.  *384. 


84  The  Story  of  a  Great  Court 

that  in  actions  ex  delicto  exemplary  damages  may  be 
awarded  when  the  injury  is  inflicted  with  malice  or  under 
circumstances  of  aggravation  insult  or  cruelty ; 18  that  the 
consideration  for  a  promise  to  answer  for  the  debt  of  an- 
other must  be  expressed  in  writing  as  well  as  the  promise 
itself  in  order  to  take  a  case  out  of  the  statute  of  frauds ; 19 
that  organized  towns  are  not  municipal  corporations  within 
the  meaning  of  Sec.  2  of  Article  XI  of  the  constitution,  but 
only  gwem'-corporations ; 20  and  that  when  constitutional  pro- 
visions or  statutes  which  have  been  the  subject  of  previous 
judicial  construction  in  another  state,  are  adopted  by  this 
state  it  is  presumed  that  such  construction  is  also  adopted.21 


is  Mc Williams  v.  Bragg,  3  Wis.  *424. 
19  Taylor  v.  Pratt,  3  Wis.  *674. 
ao  Norton  v.  Peck,  3  Wis.  *714. 
2iAtty.  Genl.  v.  Brunst,  3  Wis.  *787. 


Defeat  of  Crawford  by  Cole  85 


CHAPTER  VIII 

THE  DEFEAT  OF  CRAWFORD  BY   COLE 

Whether  it  would  or  not,  the  Court  now  occupied  a  posi- 
tion upon  the  very  center  of  the  political  stage  and  here  it 
was  to  remain  for  years.  It  had  been  compelled  to  take  a 
conspicuous  part  in  a  great  popular  movement  which  was 
fast  hurrying  the  nation  to  civil  war.  Judge  Crawford  in 
the  face  of  great  public  clamor  and  excitement  had  unequiv- 
ocally taken  the  unpopular  position  that  the  laws  of  the 
United  States  and  the  judgments  of  the  federal  courts  with- 
in their  proper  jurisdiction  were  supreme  and  could  not  be 
held  for  naught  by  the  state  courts.  His  successor  was  to 
be  elected  in  April,  1855 ;  the  last  judgment  of  discharge  in 
the  Booth  case  was  made  in  the  preceding  February  and 
public  excitement  was  still  at  fever  heat.  The  question  was, 
should  Judge  Crawford  be  re-elected  in  spite  of  his  un- 
popular views  on  the  burning  question  of  the  hour? 

The  general  political  situation  had  now  radically  changed. 
The  Whig  party  was  dead  and  its  funeral  obsequies  had  been 
performed.  It  had  indeed  nominated  a  complete  ticket  for 
state  officers  in  the  fall  of  1853,  but  a  part  of  its  candidates 
withdrew  and  a  coalition  was  finally  formed  with  the  Free 
Soilers  and  Abolitionists,  which  resulted  in  the  elimination 
of  the  Whig  ticket  under  that  name  and  the  placing  in  the 
field  of  an  independent  ticket  called  the  People's  ticket,  com- 
posed in  part  of  Whigs  and  in  part  of  Free  Soilers.  This 
ticket  had  been  decisively  defeated  in  November,  1853,  but 
its  supporters  were  not  daunted.     They  were  inspired  by  a 


86  The  Story  of  a  Great  Court 

great  moral  issue  and  under  the  new  and  attractive  name  of 
Republicans  were  disputing  every  inch  of  ground  with  the 
Democrats.  The  radical,  or  abolition  element,  in  the  new 
party  had  no  patience  with  a  man  who  could  assert  the  con- 
stitutionality of  a  fugitive  slave  law,  or  deny  the  power  of 
the  state  courts  to  interfere  with  its  operation  and  marked 
Judge  Crawford  for  defeat. 

No  party  convention  was  called  on  either  side.  Judge 
Crawford's  friends,  assuming  that  he  was  entitled  to  re- 
election after  his  very  short  first  term,  put  him  in  the  field 
in  February  by  a  call  which  was  generally  signed  by  the  bar 
of  the  state  regardless  of  party  lines.  Early  in  March  Or- 
samus  Cole  of  Grant  County  was  placed  in  nomination,  nom- 
inally as  an  independent  candidate,  by  a  call  which  was 
signed  by  about  fifty  Republican  members  of  the  legislature 
and  which  was  the  result  of  a  Republican  legislative  caucus. 

Judge  Timothy  O.  Howe  of  Green  Bay  was  strongly 
urged  as  a  candidate  before  the  legislative  caucus,  but  was 
defeated  because  he  was  opposed  to  the  ultra  state  rights 
views  adopted  in  the  Booth  case,  whereas  it  was  understood 
that  Mr.  Cole  was  in  thorough  accord  with  the  position  of 
the  Court. 

Orsamus  Cole  was  a  young  lawyer  barely  thirty-five  years 
of  age  then  practicing  at  Potosi  in  Grant  County,  which  was 
at  that  time  a  thriving  and  ambitious  town.  He  had  not 
thought  of  or  sought  the  nomination,  nor  was  he  even  pres- 
ent at  the  capitol  when  it  was  made.  At  first  he  was 
strongly  disposed  to  decline  to  make  the  run  against  a  man 
of  the  popularity  of  Judge  Crawford,  but  finally  consented 
at  the  urgent  solicitation  of  his  friends,  with  little  expecta- 
tion, however,  of  election. 


Defeat  of  Crawford  by  Cole  87 

Though  both  candidacies  were  called  independent,  the 
campaign  was  in  fact  conducted  upon  party  lines.  Repub- 
lican newspapers  supported  Mr.  Cole  with  substantial  unan- 
imity, although  with  some  exceptions,  among  which  were  the 
Mineral  Point  Tribune  and  the  Fox  Lake  Times. 

Judge  Crawford's  qualifications  were  not  seriously  at- 
tacked by  any  one,  nor  was  there  much  personal  abuse,  but 
his  defeat  was  demanded  by  the  radical  element  in  the  newly 
formed  Republican  party  because  of  his  position  on  the  con- 
stitutionality of  the  fugitive  slave  law. 

A  few  extracts  from  the  Milwaukee  Free  Democrat  (then 
conducted  by  Sherman  M.  Booth)  will  serve  to  show  the 
feeling  of  the  radicals.  On  March  21st,  1855,  replying  to 
the  Fox  Lake  Times,  it  said,  "to  vote  for  Judge  Crawford  is 
to  vote  for  the  constitutionality  of  the  Fugitive  Slave  act. 
Judge  Crawford  discharged  us  because  the  indictment 
against  us  was  not  framed  under  the  Fugitive  Slave  act  or 
under  any  law  of  the  United  States,  and  those  who  sustain 
him  for  such  a  deed  must  exercise  very  little  discrimination. 
*  *  *  We  can  only  say  that  the  whole  slavecatching 
tribe  in  this  state  are  supporting  Judge  Crawford."  On 
March  26th  it  said,  "If  the  friends  of  Cole  and  freedom  will 
work  as  zealously  as  we  know  the  friends  of  Crawford  and 
slavery  will,  the  right  will  easily  prevail,"  and  on  April  5th 
it  called  Crawford  the  "candidate  of  the  rum  and  slavery 
party." 

In  a  total  vote  of  something  more  than  50,000,  Mr.  Cole 
received  a  majority  of  over  4,000  votes.  The  result  was 
a  surprise  to  the  people  of  the  state  and  a  bitter  disappoint- 
ment to  Judge  Crawford.  No  one  had  fully  appreciated  the 
depth  and  force  of  the  great  anti-slavery  sentiment  among 
the  people.     Judge  Crawford  himself  attributed  his  defeat 


88  The  Story  of  a  Great  Court 

to  the  Know  Nothing  wave  which  was  then  at  high  tide,  and 
probably  this  had  its  effect,  but  there  can  be  no  serious  doubt 
that  it  was  in  fact  the  anti-slavery  sentiment  which  defeated 
him.  He  had  honestly  and  rightly  (as  subsequent  events 
have  proven)  opposed  the  popular  wish  and  was  for  that 
reason  defeated ;  thus  it  was  that  an  admittedly  honest  and 
capable  sitting  judge,  while  still  in  his  physical  and  intel- 
lectual prime  was  denied  re-election.  This  was  not  to  hap- 
pen again  for  more  than  half  a  century.  Under  such  cir- 
cumstances there  came  to  the  Supreme  bench  a  man  destined 
to  remain  there  for  more  than  thirty-six  years  and  to  render 
during  all  that  time  conspicuously  able  service  to  the  state. 
He  came  there  by  virtue  of  what  was  practically  a  party 
nomination  and  a  partisan  campaign,  but  by  the  irony  of  fate 
he  was  himself  to  become  an  apostle  of  nonpartisanship  in 
judicial  elections  and  to  do  great  service  in  furthering  the 
principle  that  justices  of  the  Supreme  Court  who  had  dem- 
onstrated their  ability  and  integrity  should  not  be  set  aside 
by  political  considerations. 

General  Edwin  E.  Bryant  gives  the  following  brief  and 
appreciative  sketch  of  Judge  Cole's  ancestry  and  early  life 
in  his  biographical  sketches  of  the  judges  of  the  Supreme 
Court,  which  has  been  already  referred  to : 1 

"Orsamus  Cole  was  born  in  Cazenovia,  Madison  Co.,  New  York, 
August  13,  1819.  His  ancestors  were  English  of  early  immigra- 
tion before  the  French  war,  and  settled  in  Rhode  Island.  The 
great  grandfather  was  a  Tory  and  disinherited  his  son,  the 
grandfather  of  Judge  Cole,  because  he  took  sides  with  the  colonies 
and  served  in  the  colonial  army.  The  grandfather  on  the  ma- 
ternal side,  Samuel  Salisbury,  held  a  commission  in  the  con- 
tinental army.  He  fought  at  Bennington  and  was  with  Wash- 
ington in  the  terrible  experiences  in  New  Jersey  during  the 
winter  of  1777.     He  was  at  the  surrender  of  Burgoyne  and  of 


i  Green  Bag,  Vol.  9,  p.  114. 


ORSAMUS    COLE. 


Defeat  of  Crawford  by  Cole  89 

Cornwallis  and  was  honorably   discharged   at  the   close   of  the 
war. 

"The  subject  of  this  sketch  was  brought  up  on  a  farm.  He 
attended  the  common  schools  at  Washingtonville,  Oswego  County, 
New  York,  fitted  for  college  at  the  Clinton  County  Liberal  In- 
stitute and  at  the  Black  River  Academy  in  Jefferson  County. 
He  graduated  from  Union  College  in  1843.  He  then  studied  law 
with  Curtis  &  Boomer  at  Belleville,  Jefferson  County,  and  was 
admitted  to  the  bar  in  1845,  coming  the  same  year  to  Chicago. 
Not  finding  that  a  promising  place  he  came  in  the  autumn  of 
1845  to  Potosi,  a  rough  mining  town  in  southwest  Wisconsin 
on  the  Mississippi,  a  few  miles  above  Dubuque  and  in  the  heart 
of  the  lead  region.  The  town  was  better  known  to  the  miners 
as  'Snake  Hollow,'  as  lead  was  first  found  in  a  ravine  of  that 
name. 

"Here  he  entered  upon  the  practice  and  was  successful.  A 
modest,  unassuming  manner,  little  in  keeping  with  the  rudeness 
and  boisterousness  of  those  times  in  that  section,  did  not  obscure 
his  talents,  and  he  became  a  popular  and  prominent  lawyer.  The 
miners  and  settlers  soon  found  that  he  was  careful,  painstaking, 
conscientious,  and  always  sober,  and  that  implicit  confidence 
could  be  placed  in  him,  and  they  took  his  advancement  in  their 
own  hands,  and  conferred  honors  upon  him  of  their  own  motion, 
without  even  stopping  to  consult  him  as  to  whether  he  would 
be  a  candidate  or  not. 

"In  1847  he  was  elected  a  delegate  from  Grant  County  to 
the  second  constitutional  convention.  He  was  one  of  the  young- 
est members  of  the  body  and  one  of  the  most  modest  of  men. 
But  he  soon  took  rank  among  the  ablest,  clearest  debaters. 
Cautious  and  conservative,  careful  to  details  it  was  admitted  on 
all  hands  that  he  made  a  most  valuable  member.  It  is  said  by 
those  who  attended  the  debates  and  reported  the  proceedings 
that  he  had  taken  a  prominent  part  in  the  shaping  of  all  the 
more  important  articles  of  the  constitution." 

In  1848  Mr.  Cole  was  nominated  for  Congress  as  a  Whig 
and  was  elected  against  A.  Hyatt  Smith,  Democrat,  and 
George  W.  Crabb,  Free  Soiler.  He  was  a  strong  anti- 
slavery  man  and  consistently  opposed  the  Fugitive  Slave  act 
of  1850,  as  well  as  the  compromise  legislation  of  that  year. 

Upon  the  occasion  of  the  presentation  to  the  Supreme 


90  The  Story  of  a  Great  Court 

Court  of  the  memorial  of  the  bar,  after  the  death  of  Judge 
Cole  which  occurred  May  5,  1903,  Chief  Justice  Cassoday 
in  his  response  on  behalf  of  the  Court  said,  among  other 

things : 2 

"While  in  Congress  he  enjoyed  the  friendship  and  confidence 
of  President  Taylor  who,  although  a  slaveholder,  on  one  occa- 
sion said  to  him,  'Cole,  if  I  were  a  member  of  Congress  and 
lived  where  you  do,  I  would  vote  for  the  Wilmot  proviso.'  His 
party  renominated  him  for  Congress  in  1850,  but  he  was  beaten 
by  a  Democrat — Benjamin  C.  Eastman.  In  1853  his  party  nom- 
inated him  for  attorney  general  of  the  state,  but  he  was  beaten 
by  the  late  George  B.  Smith.  Singular  as  it  may  seem  he  was 
nominated  by  his  party  as  a  candidate  for  the  State  Senate  at 
the  same  election,  but  was  beaten  by  ex-Governor  Nelson  Dewey, 
who  received  only  three  majority.  In  the  winter  of  1855  he  was, 
without  his  consent,  nominated  as  the  candidate  of  his  party 
for  associate  justice  of  this  Court  against  the  sitting  member 
Samuel  Crawford,  and  reluctantly  consented  to  run  and  was 
elected  in  the  following  April  and  became  a  member  of  this 
Court  June  1,  1855,  when  he  was  less  than  thirty-six  years  of 
age. 

"Thus  it  appears  that  in  less  than  ten  years  after  he  became 
a  resident  of  Grant  County  he  was  six  times  a  candidate  of  his 
party  for  important  positions,  three  times  defeated  and  three 
times  elected.  From  this  it  might  be  inferred  that  he  was  not 
only  a  partisan  but  an  officeseeker;  but  no  one  who  knew  the 
equipoise  and  proverbial  modesty  of  the  man  will  think  for  a 
moment  that  he  was  either.  Obviously,  as  a  candidate  of  his 
party  for  the  several  offices  mentioned,  he  was  acceptable  to  all 
and  objectionable  to  none. 

"His  experience  in  the  constitutional  convention  greatly  aided 
in  establishing  a  commendable  state  jurisprudence.  His  term 
in  Congress  naturally  tended  to  broaden  his  views  of  legislation, 
government  and  law;  but  his  ten  years  residence  in  a  small 
country  village  remote  from  the  county  seat,  from  the  capitol 
of  the  state  and  from  the  centers  of  business,  with  the  political 
interruptions  mentioned,  necessarily  limited  his  professional 
opportunities  and  business. 


2  119  Wis.  p.  xxxvi  et  seq. 


Defeat  of  Crawford  by  Cole  91 


"He  came  to  a  bench,  however,  already  occupied  by  two 
learned  and  experienced  lawyers  and  judges.  *  *  *  It  was 
fortunate  for  him  and  for  the  state  that  he  had  the  benefit  of 
working  four  years  upon  the  bench  just  when  he  did  with  men 
so  learned,  able  and  experienced  as  Chief  Justice  Whiton  and 
Justice  A.  D.  Smith.  During  that  time  numerous  questions  of 
grave  importance  were  presented,  ably  argued  and  determined. 
The  junior  member  of  the  Court  necessarily  had  an  opportunity 
for  study,  discrimination  and  reflection  as  never  before,  and 
no  one  who  knew  him  will  for  a  moment  doubt  that  he  applied 
himself  to  his  new  duties  with  all  the  energy  he  possessed. 

"Judge  Cole  was  not  a  genius  with  powers  to  thrill  and 
capture  the  multitude,  but  a  patient,  plodding  and  conscientious 
judge,  who  determined  to  do  what  he  conceived  to  be  his  duty, 
regardless  of  public  clamor  or  personal  consequences.  He  was 
not  born  for,  nor  did  he  covet,  leadership,  but  was  always  at- 
tentive and  indefatigable  in  the  performance  of  the  work  in 
hand.  He  was  never  aggressive,  but  always  thoughtful,  labor- 
ious and  firm. 

"But  few  prominent  men  in  his  time  escaped  the  biting  sarcasm 
of  Chief  Justice  Ryan,  and  yet  the  severest  thing  he  ever  said  of 
Judge  Cole  was  that  he  never  allowed  the  statutes  of  limitation  to 
run  on  his  resentments.  In  extenuation  it  may  be  truthfully  said 
that  Judge  Cole  had  but  very  few  resentments  and  that  each  was 
b  sed  upon  what  he  conceived  to  be  good  ground.  During  my  long 
service  with  him  upon  the  bench,  he  never  to  my  knowledge,  by 
word  or  look,  showed  any  disrespect  to  any  of  his  associates,  and 
I  have  no  recollection  of  any  of  his  associates  ever  showing  any 
disrespect  to  him." 

As  has  been  already  said,  Judge  Cole  served  continuously 
upon  the  Supreme  Bench  for  a  period  exceeding  thirty-six 
years,  a  service  longer  by  far  than  that  of  any  judge  who 
has  ever  sat  upon  that  bench  and  longer  than  any  judge  is 
likely  to  serve  in  the  future.  During  that  long  period  of 
service  there  were  submitted  to  the  Court  a  host  of  grave 
and  perplexing  questions ;  to  the  settlement  of  these  ques- 
tions he  gave  his  life,  his  ability,  and  his  energies  with  a 
single  hearted  devotion  rarely  equalled.     From  the  time  of  ■ 


92  The  Story  of  a  Great  Court 

his  accession  to  the  bench  until  his  retirement  in  January, 
1892,  his  history  becomes  the  history  of  the  Court  itself  and 
his  great  record  is  imperishably  preserved  in  seventy-eight 
volumes  of  the  Wisconsin  reports. 

Judge  Crawford's  last  appearance  upon  the  bench  was  on 
the  31st  day  of  May,  1855,  being  the  last  day  of  the  January 
term,  and  Judge  Cole  assumed  his  office  on  the  following 
day,  but  did  not  go  upon  the  bench  until  June  19th,  which 
was  the  opening  day  of  the  June  term.  That  Judge  Craw- 
ford's term  ended  and  Judge  Cole's  term  begun  on  the  first 
day  of  June  seems  to  have  been  unquestioned  at  this  time, 
but  several  years  afterward  the  claim  was  made  by  Judge 
Crawford  that  his  term  did  not  legally  end  until  the  first 
Monday  of  January,  1856. 

This  claim  was  made  in  the  following  manner.  In  May, 
1859,  Judge  Crawford  applied  to  the  secretary  of  state  to 
audit  a  claim  for  salary  from  June  1,  1855  to  January  1, 
1856,  and  the  secretary  audited  the  same,  but  on  presentation 
of  the  warrant  to  the  state  treasurer  payment  was  refused. 
On  the  twenty-second  day  of  July,  1859,  an  alternative  writ 
of  mandamus  was  issued  out  of  the  Supreme  Court  against 
the  treasurer,  which  came  on  for  hearing  August  8,  1859. 
The  treasurer  made  answer  denying  that  Crawford  was  a 
justice  of  the  Court  during  the  time,  and  alleging  that  in 
any  event  Judge  Crawford  had  voluntarily  surrendered  the 
office  to  Judge  Cole,  who  had  exercised  the  same  and  drawn 
the  salary,  and  further  alleging  that  the  claim  had  never 
been  presented  for  audit  to  the  comptroller  of  the  state,  as 
required  by  law.3 

Judge  Crawford's  contention  that  his  term  of  office  did 
not  in  fact  expire  until  January,  1856,  was  based  upon  Chap- 


3  State  v.  Hastings,  10  Wis.  *525. 


Defeat  of  Crawford  by  Cole  93 

ter  41  of  the  laws  of  1854,  which  provided  that  "the  term  of 
county  judges,  circuit  judges  and  justices  of  the  Supreme 
Court  shall  be  for  such  time  as  at  present  prescribed  by  law, 
and  shall  commence  on  the  first  Monday  of  each  year  next 
after  the  election  of  such  officer,  unless  otherwise  specially 
provided."  Section  three  of  Chapter  395  of  the  laws  of 
1852,  creating  the  Supreme  Court,  provided  that  the  terms 
of  the  justices  should  commence  on  the  first  day  of  June 
and  expire  on  the  last  day  of  May,  but  the  claim  was  that 
the  law  of  1854  had  extended  the  term,  so  that  it  did  not 
expire  until  the  following  January.  The  case  was  decided 
August  20,  1859,  and  a  brief  memorandum  of  the  points 
decided  was  then  filed,  leaving  the  more  formal  opinions  to 
be  prepared  and  filed  at  a  later  time.  As  the  decision  could 
in  no  way  affect  the  personal  or  official  rights  of  Judge  Cole 
he  took  part  in  the  case,  and  indeed  this  course  seemed  al- 
most essential  on  account  of  the  attack  upon  the  law  creat- 
ing the  office  of  comptroller,  as  well  as  on  account  of  the 
difference  of  opinion  between  Judge  Paine  and  Judge  Dixon 
as  to  the  effect  of  the  law  of  1854. 

It  appears  by  the  memorandum  that  Justices  Dixon  and 
Paine  held  that  the  act  of  1858  creating  the  office  of  State 
Comptroller  was  unconstitutional  and  void  and  from  this 
conclusion  Judge  Cole  dissented ;  on  the  other  hand  Justices 
Dixon  and  Cole  held  that  chapter  41  of  the  laws  of  1854  was 
constitutional  and  applied  to  Justices  of  the  Supreme  Court 
and  hence  that  Judge  Crawford's  term  did  not  expire  until 
January  1,  1856,  and  from  this  conclusion  Justice  Paine  dis- 
sented. All  of  the  justices  agreed,  however,  upon  the  prop- 
osition that  as  Justice  Crawford  had  voluntarily  surrendered 
his  office  to  Justice  Cole  under  claim  of  title  and  Justice  Cole 
had  become  a  de  facto  officer  and  drawn  the  salary,  Justice 


94  The  Story  of  a  Great  Court 

Crawford  had  waived  and  forfeited  his  right  to  the  salary. 

It  appears  that  Justice  Paine  prepared  his  opinion  first 
and  his  argument  as  to  the  intent  of  the  lawmakers  in  the 
passage  of  chapter  41  was  so  cogent  that  Chief  Justice 
Dixon  receded  from  his  former  opinion  and  concurred  with 
Justice  Paine  in  holding  that  the  law  did  not  apply  to  Jus- 
tices of  the  Supreme  Court  at  all  and  hence  no  decision  as 
to  its  constitutionality  was  necessary.  This,  as  Chief  Jus- 
tice Dixon  says  in  the  course  of  his  opinion,  is  "a  singular 
instance  of  the  advantage  of  having  a  dissenting  opinion 
prepared  in  advance  of  that  of  the  majority  of  the  Court." 
Justice  Cole  retained  his  former  views  and  only  concurred  in 
the  result  on  the  ground  that  Justice  Crawford  had  volun- 
tarily surrendered  his  office  June  1,  1856,  and  hence  had 
waived  any  claim  for  salary  after  that  time.  In  the  course 
of  his  opinion  Justice  Cole  says : 

"It  is  needless  for  me  to  add  that  I  was  ignorant  of  the  exist- 
ence of  the  law  of  1854  when  I  qualified  and  entered  upon  the 
d'scharge  of  the  duties  of  a  Justice  of  this  Court.  My  attention 
was  first  called  to  the  law  in  the  latter  part  of  the  winter  of  1857 
at  the  time  of  the  re-election  of  the  late  Chief  Justice  Whiton. 
Upon  that  occasion  the  proper  construction  of  the  law  of  1854  was 
a  subject  of  considerable  discussion  among  the  members  of  this 
Court  in  the  consultation  room  and  we  unanimously  took  the  view 
of  it  which  I  have  expressed  in  this  opinion." 

The  formal  opinions  were  filed  during  the  January  term, 
i860. 

Upon  the  presentation  to  the  Supreme  Court  of  a  portrait 
of  Justice  Crawford,  November  17,  1904,  Mr.  Calvert  Spens- 
ley  of  Mineral  Point  paid  a  graceful  and  appreciative  tribute 
to  Judge  Crawford,  in  which  after  stating  that  Judge  Cole 
succeeded  him  on  the  bench  June  1,  1855,  he  says: 

"It  was  afterwards  determined  that  Judge  Crawford's  term 
under  the  constitution  of  the  state  did  not  expire  until  January  1, 
1856,  and  he  was  awarded  the  salary  of  the  office  from  June  1, 


Defeat  of  Crawford  by  Cole  95 

1855,  to  January  1,  1856,  although  Judge  Cole  as  de  facto  judge 
occupied  a  seat  on  the  bench  during  that  time  and  also  drew  the 
salary."* 

This  statement  is  unquestionably  erroneous,  but  the  error 
doubtless  resulted  from  the  fact  that  as  the  case  was  orig- 
inally decided  the  majority  of  the  Court  held  that  the  act  of 
1854  applied  to  justices  of  the  Supreme  Court  and  that 
hence  Justice  Crawford's  term  was  actually  extended  to 
January,  1856,  had  he  chosen  to  insist  upon  his  right. 


4  123  Wis.  p.  xxxii. 


96  The  Story  of  a  Great  Court 


CHAPTER  IX 

THE  DISPUTED  GOVERNORSHIP 

The  bench  was  now  composed  of  two  Republicans,  Whiton 
and  Cole,  and  one  Democrat,  Smith,  but  all  were  agreed  that 
the  rulings  in  the  Booth  cases  were  correct  and  should  be 
maintained.  As  has  been  already  noted,  the  writ  of  error 
from  the  United  States  Supreme  Court  in  the  last  Booth 
case  was  served  about  June  i,  1855,  and  to  this  writ  the 
Court  directed  the  clerk  to  make  no  return.1  This  was  man- 
ifestly a  complete  defiance  of  federal  authority,  the  only  ad- 
ditional step  necessary  to  be  taken  to  reach  the  extreme  state 
rights  position  was  the  appeal  to  arms.  At  the  same  (June, 
1855)  term  the  Court  held  that  state  courts  had  power  to 
discharge  a  person  in  custody  under  a  criminal  warrant  is 
sued  by  a  United  States  Court  which  showed  want  of  juris- 
diction on  its  face,  and  that  a  rearrest  under  the  same  war- 
rant was  unlawful,  and  thus  the  controversy  became  still 
more  acute.2 

But  as  if  the  Court  were  not  already  sufficiently  involved 
in  the  heated  political  struggles  of  a  period  which  was  sur- 
charged with  political  excitement  and  bitterness,  it  was  now 
obliged  to  take  an  active  and  controlling  part  in  state  politics 
and  pass  upon  a  contested  election  involving  the  office  of 
Governor  of  the  state,  a  contest  which  aroused  party  pas- 
sions to  the  utmost. 


lAbleman  v.  Booth,  11  Wis.  *498-*500. 
2Bagnall  v.  Ableman,  4  Wis.  *163. 


The  Disputed  Governorship  97 

Since  the  admission  of  the  state  to  the  Union  the  Demo- 
cratic party  had  retained  control  of  the  state  offices  except 
that  in  the  election  of  185 1  the  Whigs  had  elected  Governor 
Farwell  hy  a  narrow  majority.  In  1852,  however,  the  state 
was  carried  by  Pierce  and  in  1853  the  Democrats  were 
again  successful  and  elected  a  full  state  ticket,  headed  by 
William  A.  Barstow  against  a  People's  ticket,  composed  of 
Whigs  and  Free  Soilers,  headed  by  Edward  D.  Holton. 

Barstow's  administration  had  been  a  stormy  one  and  gen- 
erally unsatisfactory  to  the  mass  of  the  people.  He  was 
denounced  as  hishonest  and  corrupt  by  a  faction  of  his 
own  party,  and  the  newly  organized  Republican  party 
placed  its  first  full  ticket  in  the  field  headed  by  Coles  Bash- 
ford  of  Oshkosh,  then  a  member  of  the  state  senate.  The 
campaign  was  rancorous  in  the  extreme ;  both  candidates 
were  accused  of  being  Know  Nothings,  and  both  denied  the 
charge ;  personal  abuse  of  all  kinds  abounded,  and  charges 
of  dishonesty  and  fraud  were  made  by  both  sides.  The  re- 
sult was  close  and  for  days  and  weeks  both  parties  claimed 
the  election  of  Governor  by  several  hundred  votes,  although 
it  was  in  a  few  days  conceded  that  all  the  Democratic  can- 
didates below  the  office  of  Governor  had  been  elected  by  safe 
majorities.  The  official  canvass  was  delayed;  the  returns 
from  distant  counties  were  slow  in  coming  in;  the  Repub- 
licans charged  that  some  returns  from  Chippewa,  Waupaca, 
and  other  counties  had  been  manufactured,  and  that  the 
state  canvassing  board  was  delaying  the  count  with  the 
deliberate  intention  of  counting  in  Governor  Barstow. 

Finally  the  board  met  on  the  last  day  allowed  by  law,  and 
on  the  17th  day  of  December  canvassed  the  vote  and  de- 
clared the  result  to  be  that  Barstow  had  received  36,355 
votes,  and  Bashford  36,198,  giving  Barstow  a  plurality  of 
7 


98  The  Story  of  a  Great  Court 

157.     The   remainder  of  the  Democratic  candidates   were 
given  majorities  varying  from  1,700  to  5,100. 

The  cry  of  fraud  was  at  once  raised  by  the  Republican 
press,  and  preparations  made  to  contest  the  seat  in  the 
Supreme  Court.  Bashford  took  the  constitutional  oath  and 
demanded  possession  of  the  office  on  the  first  Monday  of 
January,  1856 ;  his  demand  being  refused,  he  proceeded  to 
test  his  right  in  the  Supreme  Court. 

Barstow  had  most  of  the  strategical  advantages  in  the 
contest  which  was  now  to  begin.  He  had  the  official  cer- 
tificate of  election  from  the  canvassing  board,  he  was  al- 
ready in  possession  of  the  office,  and  the  newly  elected  at- 
torney general  of  the  state,  General  Wm.  R.  Smith,  who  pre- 
sumably would  have  legal  control  of  a  contest,  was  of  his 
own  political  faith.  These  advantages  of  position,  however, 
did  not  daunt  the  Republicans,  who  felt  certain  of  the  justice 
of  their  cause  and  viewed  with  complacency  the  fact  that 
a  majority  of  the  Supreme  bench  were  Republicans,  while 
the  sole  Democrat  was  at  outs  with  his  party  on  the  state 
rights  question. 

By  chapter  23  of  the  session  laws  of  1855  the  legislature 
had  provided  that  when  any  citizen  should  claim  any  public 
office  which  was  usurped  by  another  the  claimant  should 
have  a  right  to  file  an  information  in  the  nature  of  a  quo 
warranto  in  the  Supreme  Court,  with  or  without  the  consent 
of  the  Attorney  General  and  to  prosecute  the  same  to  final 
judgment  provided  he  should  have  first  applied  to  the  at- 
torney general  to  file  the  same  and  the  attorney  general 
should  have  refused  or  neglected  to  do  so,  in  which  case, 
however,  the  claimant  was  to  be  liable  for  the  costs. 

The  purpose  of  the  law  was  evidently  to  give  the  attorney 
general  the  opportunity  to  decide  whether  the  public  wel- 


The  Disputed  Governorship  99 

fare  demanded  that  an  action  be  prosecuted  by  the  state  and 
at  the  same  time  to  allow  the  claimant  to  carry  on  the  con- 
test himself  and  at  his  own  expenses  in  case  the  decision 
of  the  attorney  general  should  be  adverse. 

Bash  ford  employed  as  his  attorneys  four  of  the  most  dis- 
tinguished lawyers  of  the  state,  Messrs.  E.  G.  Ryan,  James 
H.  Knowlton,  Timothy  O.  Howe  and  Alexander  W.  Ran- 
dall and  a  race  of  diligence  began  between  these  private 
counsel  and  the  newly  elected  Attorney  General,  Wm.  R. 
Smith,  to  see  who  should  have  control  of  the  quo  warranto 
action.  It  was  certain  that  under  the  statute  just  referred 
to  the  action  would  be  carried  on  by  Bashford's  attorneys, 
if  the  Attorney  General  refused  to  bring  it.  Manifestly  it 
would  be  wise  for  the  Attorney  General  to  bring  the  action 
himself  and  thus  have  it  within  the  control  (so  far  as  an 
attorney  could  control  it)  of  one  who  at  least  had  no  feeling 
in  favor  of  Bashford. 

The  newly  elected  Attorney  General  was  an  interesting 
and  unique  figure  in  the  early  history  of  the  territory  and 
state.  At  this  time  he  was  sixty-eight  years  of  age,  a  courtly 
gentleman  of  the  old  school,  still  wearing  knee  breeches  and 
his  hair  done  up  in  a  queue.  He  was  almost,  if  not  quite, 
the  sole  survivor  of  a  generation  which  had  practically 
passed  from  the  stage  of  public  activity.  His  career  had 
been  long  and  varied  and  it  may  not  be  out  of  place  here 
to  insert  a  short  sketch  of  his  life,  taken  from  Berryman's 
History  of  the  Bench  and  Bar  of  Wisconsin,  as  follows : 

"William  Rudolph  Smith  was  born  at  La  Trappe,  Montgomery 
County,  Pa.  August  31,  1787;  in  1792  his  father  removed  to  Phila- 
delphia, where  the  son  was  given  institutional  and  private  in- 
struction until  1803,  when  as  private  secretary  he  accompanied  his 
father — William  Moore  Smith — one  of  the  commissioners  under 
the  sixth  article  of  Jay's  treaty  to  adjust  and  settle  the  demands 
of  the  British  claimants,  to  England.     While  there  young  Smith 


100  The  Story  of  a  Great  Court 

began  a  course  of  legal  study  under  the  direction  of  a  competent 
teacher,  which  he  continued  on  his  return  to  America. 

"In  1808  he  became  a  member  of  the  Philadelphia  bar,  and  in 
1809  entered  upon  the  practice  of  his  profession  in  Huntingdon, 
Pa.  He  served  as  deputy  attorney  general  for  Cambria  County 
under  appointment  from  three  attorneys  general,  his  first  service 
being  rendered  in  1811.  In  the  war  with  Great  Britain  he  was 
colonel  of  the  sixty  second  regiment  of  the  Pennsylvania  reserves 
and  was  in  command  when  it  was  ordered  to  Erie  to  support  Gen- 
eral Scott  in  the  movement  on  Canada.  He  was  in  Baltimore  dur- 
ing the  siege  of  that  city  and  witnessed  the  disaster  at  Bladens- 
burg  and  the  burning  of  Washington.  He  served  as  a  member  of 
both  branches  of  the  Pennsylvania  legislature.  In  1828  he  re- 
moved to  Bedford  County;  his  residence  there  continued  until 
1836  or  1837,  when  he  was  appointed  commissioner,  in  conjunction 
with  Henry  Dodge,  to  treat  with  the  Chippewa  Indians  for  the 
purchase  of  their  Wisconsin  lands.  This  led  to  his  removal  to  the 
west  and  in  1838  he  settled  at  Mineral  Point,  Wisconsin. 

"In  1839  he  was  appointed  by  Governor  Dodge  adjutant  general, 
a  position  which  he  held  about  twelve  years;  he  was  also  district 
attorney  of  Iowa  County  for  several  years.  In  1840  he  presided 
over  the  first  Democratic  convention  held  at  the  seat  of  govern- 
ment and  drafted  the  address  of  that  body  to  the  electors.  In  1846 
he  was  clerk  of  the  legislative  council  and  in  the  same  year  was  a 
delegate  to  the  constitutional  convention;  in  1849  and  1850  he  was 
chief  clerk  of  the  Senate;  in  1852  the  legislature  authorized  Gen- 
eral Smith  to  compile  a  documentary  history  of  Wisconsin  from 
its  earliest  settlement  to  that  time;  this  work  was  prosecuted  with 
such  diligence  that  it  was  ready  for  publication  in  1854  and  was 
published  by  the  state.  In  1856  and  1857  he  served  as  attorney 
general,  having  been  elected  in  1855. 

"At  the  expiration  of  his  term,  having  passed  his  seventieth 
year  he  retired  from  active  life;  after  his  retirement  he  enjoyed 
the  quiet  of  his  home  and  the  society  of  his  friends.  He  had 
touched  life  at  many  points,  had  seen  much  more  of  the  world 
than  the  great  majority  of  his  associates  among  the  early  settlers. 
Mr.  Reed  says  in  his  Bench  and  Bar  that  his  reminiscences  of 
Washington  and  the  statesmen  of  his  day  and  many  incidents  and 
anecdotes  of  historical  interest  were  related  with  dramatic  effect. 
The  hands  of  Washington  had  rested  on  his  head;  he  had  listened 
to  the  reading  of  the  farewell  address;  he  was  present  in  the  Ger- 
man Lutheran  Church  in  Philadelphia  when  Major  General  Lee 
pronounced  the  funeral  oration  on  Washington,  and  he  was  in  the 


The  Disputed  Governorship  101 

theater  on  the  night  when  the  national  anthem  of  "Hail  Colum- 
bia" was  first  sung  and  was  witness  to  the  enthusiasm  with  which 
the  song  was  greeted.  He  had  seen  every  president  from  Wash- 
ington to  Lincoln.  His  death  occurred  at  Quincy,  Illinois,  where 
he  had  gone  on  a  visit  to  a  daughter,  August  22,  1868." 

The  maneuvering  for  control  of  the  proceedings  between 
the  attorney  general  on  the  one  side  and  Bash  ford's  counsel 
upon  the  other,  began  almost  immediately  after  the  rival 
candidates  had  taken  the  oaths  of  office.  Bashford's  coun- 
sel had  investigated  the  facts  as  to  the  supplemental  returns 
from  six  counties,  of  which  the  counties  of  Waupaca  and 
Chippewa  were  the  most  important,  and  charged  that  not 
only  had  the  returns  from  a  number  of  precincts  been  falsi- 
fied by  increasing  Barstow's  vote  and  decreasing  Bashford's 
but  that  fictitious  precincts  had  actually  been  created  and 
endowed  with  votes,  all  of  which  were  heavily  in  favor  of 
Barstow.  Among  these  nonexistent  precincts  were  "Bridge 
Creek"  in  Chippewa  County,  "Gilberts  Mills"  in  Dunn 
County  and  "Spring  Creek"  in  Polk  County.  They,  there- 
fore, prepared  a  long  information  setting  out  in  detail  these 
alleged  falsifications  of  the  actual  vote  and  on  the  eleventh 
day  of  January,  1856,  presented  the  same  to  the  Attorney 
General  and  requested  him  to  sign  and  file  the  same  and 
to  bring  the  action  thereon ;  to  this  request  the  Attorney 
General  replied  that  he  (Bashford)  might  make  his  request 
in  writing  and  that  he  would  then  take  the  same  under  con- 
sideration. On  the  fifteenth  clay  of  January,  without  notice 
to  Bashford  or  his  attorneys,  the  Attorney  General  filed  in 
Court  a  very  brief  information  charging  simply  that  Bash- 
ford was  elected  Governor,  November  6,  1855,  and  that 
Barstow  had  usurped  and  intruded  into  the  office.  Upon 
this  information  a  summons  was  issued  out  of  the  Supreme 
Court  January  17th,  returnable  February  5th  following  and 


102  The  Story  of  a  Great  Court 

served  upon  Barstow.3  This  proceeding  was  by  no  means 
satisfactory  to  Bashford's  counsel ;  they  desired  to  put  the 
Attorney  General  in  the  position  of  having  refused  to  bring 
the  action  and  they  immediately  made  a  motion  to  strike  out 
the  Attorney  General's  information  and  file  in  place  of  it 
the  one  which  they  had  prepared  and  that  Bashford  be  at 
libertv  to  prosecute  and  control  the  action.  This  motion 
was  resisted  by  the  Attorney  General  and  in  the  course  of 
the  hearing  a  formal  appearance  for  Governor  Barstow  was 
entered  by  Jonathan  E.  Arnold,  Harlow  S.  Orton  and  Matt. 
H.  Carpenter,  and  they  took  part  in  the  argument  in  op- 
position to  the  motion ;  the  motion  was  denied  January  24th, 
the  Court  holding  that  the  Attorney  General  had  not  re- 
fused to  bring  the  action  within  the  meaning  of  the  act  of 
1855  and  hence  that  the  relator  had  not  the  right  to  control 
the  action  or  dictate  as  to  the  form  of  the  information,  and 
that  at  least  until  it  appeared  that  the  Attorney  General  was 
acting  in  bad  faith  in  the  matter  the  Court  should  not  in- 
terfere. Thereupon  the  Attorney  General's  information 
was  amended  in  some  minor  particulars  and  on  the  second 
day  of  February  the  attorneys  for  Barstow  filed  a  formal 
motion  to  quash  the  summons  and  dismiss  the  action  on 
the  ground  that  the  Court  had  no  jurisdiction  in  the  prem- 
ises. Upon  this  motion  the  respondent  moved  for  thirty 
days'  time  in  which  to  prepare  for  the  argument  but  the 
Court  fixed  the  hearing  for  the  eleventh  day  of  February 
and  upon  that  day  the  argument  was  begun  by  Mr.  Car- 
penter. 

The  respondent's  position  was  that  the  Court  had  no 
power  to  consider  or  decide  the  question  as  to  who  was 
Governor  of  the  state;  that  the  Executive,  Legislative  and 


3Atty.  Genl.  v.  Barstow,  4  "Wis.  *567. 


The  Disputed  Governorship  1 03 

Judicial  departments  of  the  government  were  co-ordinate 
branches  and  that  each  was  the  final  judge  of  the  election 
and  qualification  of  its  own  member  or  members.  The 
argument  of  the  motion  consumed  three  days  and  was  par- 
ticipated in  by  Messrs.  Carpenter,  Orton  and  Arnold  for 
the  respondent,  and  by  Messrs.  Randall,  Knowlton  and 
Howe  for  the  relator,  Attorney  General  Smith  declining  to 
take  part. 

That  the  argument  was  a  brilliant  one  goes  without  say- 
ing ;  even  the  meagre  report  of  it  which  has  been  preserved 
demonstrates  this  fact.  It  took  place  at  a  time  when  oratory 
was  still  heard  in  courtrooms,  when  the  profession  was  not 
yet  overwhelmed  with  whole  libraries  of  precedents,  and 
when  argument  based  upon  general  principles  was  still  pos- 
sible. Trope  and  simile,  metaphor  and  classic  allusion,  apt 
quotation  and  biting  satire  abounded  in  the  speeches  made 
by  men  who  were  at  that  time  the  intellectual  giants  of  the 
bar  of  the  state.  On  the  eighteenth  of  February  the  motion 
was  denied  in  an  opinion  by  Chief  Justice  Whiton,  holding 
that  the  Court  had  the  same  power  under  the  statute  to 
remove  a  person  who  had  unlawfully  intruded  into  the  office 
of  Governor  as  it  had  in  case  of  intrusion  into  any  other 
office.  The  Court  gave  the  respondent  time  for  answering 
until  the  twenty-first  of  February,  at  which  time  counsel  for 
all  parties  filed  a  stipulation  to  the  effect  that  the  state  board 
of  canvassers  had  canvassed  the  votes  and  determined  that 
Barstow  was  elected  and  had  given  him  a  certificate  of  such 
election  in  proper  form  and  further  that  Barstow  had  taken 
and  filed  his  oath  of  office  and  submitting  to  the  Court  the 
question  whether  the  Court  had  any  jurisdiction  to  receive 
proof  and  examine  the  question  as  to  which  candidate  in 
fact  received  the  greatest  number  of  votes.     After  consul- 


1 04  The  Story  of  a  Great  Court 

tation  the  Court  concluded  that  the  question  submitted  by 
the  stipulation  was  merely  a  moot  question,  calling  for  no 
action  on  the  part  of  the  Court  and  directed  that  the 
respondent  plead  to  the  information  by  the  twenty-fifth  of 
February.  On  the  last  named  day  the  respondent  filed  a 
plea  to  the  effect  that  he  should  not  be  compelled  to  answer 
because  of  the  final  determination  of  the  question  by  the 
state  board  of  canvassers  and  also  filed  with  the  plea  copies 
of  the  canvass  and  certificate  and  the  oath  of  office  taken 
by  Barstow.  To  this  plea  the  relator  immediately  demurred 
and  on  the  following  day  a  joinder  in  demurrer  was  filed. 
On  the  twenty-ninth  of  February  the  argument  on  the  de- 
murrer was  opened  by  Mr.  Ryan  and  continued  by  Mr. 
Orton  and  Mr.  Howe  and  on  the  fourth  of  March  the  de- 
murrer was  sustained  because  the  plea  was  simply  a  plea 
to  the  jurisdiction  and  not  a  plea  in  bar  and  the  respondent 
was  allowed  four  days  in  which  to  plead  over.  On  the 
eighth  of  March  the  respondent's  attorneys  appeared  and 
through  Mr.  Carpenter  announced  that  by  direction  of 
Governor  Barstow  they  withdrew  from  the  case ;  at  the 
same  time  they  handed  to  the  Court  a  communication  from 
the  Governor,  protesting  that  he  had  been  elected  by  an 
unquestionable  majority,  declining  to  submit  his  official 
rights  and  powers  to  the  determination  of  the  Court  and 
concluding  as  follows : 

"Deeply  impressed  with  the  responsibilities  under  which  I  act, 
and  of  the  solemnity  of  the  oath  which  I  have  taken  to  support 
the  constitution  of  the  state,  to  no  infraction  of  which  can  I  sub- 
mit or  consent,  and  believing  that,  the  Supreme  Court  will  best 
subserve  the  interest  of  the  people  of  the  state  and  answer  the, 
constitutional  purpose  of  its  creation  by  discharging  its  legitimate 
functions  without  arrogating  to  itself  the  high  prerogative  of 
transferring  the  sovereign  powers  of  the  government  to  partisan 
claimants,  I  hereby  take  my  leave  of  the  Court  and  of  these  un- 
warrantable proceedings  in  which  the  Court  seems  but  too  willing 


The  Disputed  Governorship  105 

to  receive  my  full  and  unreserved  submission;  and  I  shall  deem  it 
my  imperative  duty  to  repel  with  all  the  force  vested  in  this  de- 
partment any  infringement  upon  the  rights  and  powers  which  I 
exercise  under  the  constitution." 

In  the  published  volume  entitled,  "The  Trial  in  the  Su- 
preme Court  of  the  Information  in  the  Nature  of  a  Quo 
Warranto  Filed  by  the  Attorney  General  on  the  relation  of 
Coles  Bashford  v.  Wm.  A.  Barstow,"  to  be  found  in  the 
state  library,  it  is  said  in  a  note  on  page  226  that  this  paper 
was  sent  up  folded  to  the  Court  and  was  not  read,  as  the 
Court  was  just  about  to  adjourn  till  the  eleventh  of  March, 
but  that  on  examination  of  the  paper  after  reassembling  of 
the  Court  they  refused  to  receive  it  on  account  of  the  in- 
decent language  in  which  it  was  couched.  It  is  published 
in  full,  however,  in  the  Supreme  Court  reports  (4  Wis. 
pp.  *732-3-4~5)  with  no  suggestion  of  a  refusal  to  receive 
it. 

On  the  same  day  Governor  Barstow  sent  a  message  to 
the  legislature,  detailing  the  court  proceedings,  embodying 
a  copy  of  the  above  communication  to  the  Court,  and  stating 
that  he  deemed  the  proceedings  on  the  part  of  the  Court  to 
be  a  "bold  and  dangerous  assumption  and  usurpation  of 
power"  which  it  was  the  duty  of  every  department  of  the 
government  and  of  every  good  citizen  of  the  state  to  resist 
to  the  last.  This  was  plainly  a  threat  of  armed  resistance 
in  case  the  Court  proceeded  to  seat  Bashford.  Especially 
significant  was  the  threat  in  view  of  the  fact  that  arms  were 
known  to  have  been  stored  in  the  state  house  for  use  in  case 
of  an  emergency.  The  Court,  however,  proceeded  calmly 
on  its  way  regardless  of  threats  or  public  clamor. 

On  the  eleventh  of  March  the  relator  moved  for  judgment 
by  default,  but,  the  Attorney  General,  desiring  time  to  con- 
sider what  course  he  should  pursue,  time  was  given  by  the 


1 06  The  Story  of  a  Great  Court 

Court  until  the  eighteenth  of  the  same  month,  when  he  came 
into  Court  and  filed  a  written  statement,  purporting  to  dis- 
miss the  case  so  far  as  the  state  was  concerned ;  upon  the 
following  day  the  Court  held  that  the  case  should  proceed 
at  the  suit  of  the  relator  alone  and  that,  on  account  of  the 
importance  of  the  office  and  the  great  public  interests  in- 
volved, he  should  be  required  to  make  his  proofs  and  show 
a  prima  facie  title  to  the  office,  instead  of  taking  judgment 
by  default.  On  the  thirtieth  of  March  the  taking  of  tes- 
timony begun,  the  irregularities  and  fraudulent  returns  were 
amply  proven  and  on  the  twenty-fourth  day  of  the  same 
month  judgment  was  formally  entered,  adjudging  that 
Bashford  was  duly  elected  and  that  he  should  recover  the 
office. 

This  result  had  been  anticipated  by  all,  including  Gov- 
ernor Barstow  himself.  While  in  his  communications  to 
the  Court  and  the  legislature  of  March  8th  he  had  an- 
nounced his  intention  to  resist  the  pretensions  of  the  Court 
to  the  last,  he  had  become  convinced  before  the  judgment 
was  pronounced  of  the  futility  of  any  attempt  at  armed 
resistance.  The  sentiment  of  the  people  at  large  was 
strongly  against  him ;  the  attempted  frauds  were  too  palpa- 
ble, and  moreover  it  was  evident  that  the  legislature  would 
not  support  him  in  the  use  of  force.  The  majority  of  the 
Senate  was  both  politically  and  personally  hostile  and  it  be- 
came certain  that  if  he  resisted  he  would  stand  practically 
alone. 

On  the  twenty-first  of  March  he  sent  a  formal  resignation 
to  the  legislature,  accompanied  with  a  message  protesting 
against  the  usurpation  of  power  by  the  Court  and  placing 
his  resignation  upon  the  high  ground  of  a  desire  to  save  the 
state  from  the  calamities  of  civil  strife.     Upon  the  following 


The  Disputed  Governorship  107 

day  Lt.-Governor  Arthur  McArthur  assumed  the  duties  of 
Governor  and  announced  that  fact  in  a  message  to  the  legis- 
lature. His  administration  is  described  as  follows  in  Ber- 
ryman's  "Bench  and  Bar  of  Wisconsin"  (Vol.  i,  p.  387)  : 

"He  held  the  office  four  days.  One  of  his  first  official  acts  was 
to  order  that  the  arms  and  ammunition  stored  in  the  executive 
office  by  Barstow  be  removed  from  the  capitol.  After  the  Su- 
preme Court  determined  that  Bashford  was  elected  and  that  the 
right  to  the  office  was  a  question  for  judicial  determination,  Bash- 
ford  and  his  counsel  went  to  the  executive  office  and  demanded  of 
McArthur  that  he  surrender  possession  of  it.  'Am  I  to  under- 
stand/ said  he,  'that  if  I  do  not  surrender  the  office  you  will  re- 
sort to  force?'  Timothy  O.  Howe,  Bashford's  counsel,  said,  'My 
advice  is  that  Mr.  Bashford  hang  his  coat  upon  a  nail  and  pro- 
ceed to  the  performance  of  his  gubernatorial  duties.  I  would  not 
of  course  advise  him  to  lay  violent  hands  upon  so  distinguished  a 
gentleman  as  Governor  McArthur.'  After  further  talk  Mr.  Bash- 
ford said  that  unless  Mr.  McArthur  retired  he  would  'probably 
be  compelled  to  expel  him  by  force,'  whereupon  McArthur  with- 
drew and  resumed  his  duties  as  president  of  the  Senate." 

Thus  the  contest  closed  and  Governor  Bashford  held  the 
office  unchallenged  for  the  remainder  of  his  term.  There 
can  be  no  doubt  that  there  was  grave  danger  of  an  armed 
conflict  between  the  partisans  of  Barstow  and  Bashford  at 
this  time.  Many  Democrats  believed  that  the  action  of  the 
Court  was  bald  usurpation  of  power.  Chief  Justice  Cole 
is  authority  for  the  statement  that  "but  for  the  implicit  con- 
fidence which  nearly  all  the  people  of  the  state  felt  in  the 
judicial  integrity  of  Judge  Whiton,  bloodshed  would  almost 
certainly  have  followed  the  Court's  decision."  4 


*  Berryman's  History  of  Bench  and  Bar  of  Wisconsin,  p.  94. 


1 08  The  Story  of  a  Great  Court 


CHAPTER  X 
CHIEF  justice  whiton's  re-election 

During  the  year  following  the  Barstow  and  Bashford  con- 
troversy the  Court  was  not  called  upon  to  pass  upon  any 
other  cases  of  a  political  or  public  character,  but  was  busily 
occupied  in  disposing  of  private  litigation  and  laying  down 
fundamental  principles  governing  private  rights  and  their 
preservation  and  enforcement.  This  was  important  work, 
perhaps  fully  as  important  as  the  determination  of  the  great 
political  and  public  controversies  of  which  mention  has  been 
made,  but  it  could  scarcely  be  of  interest  here  to  attempt 
any  extended  notice  of  the  cases  themselves  or  the  principles 
involved  in  them ;  it  is  sufficient  to  say  that  the  work  was 
done  with  ability  and  care  and  that  the  propositions  decided 
have  largely  passed  into  the  fabric  of  the  jurisprudence  of 
the  state  without  change. 

In  October,  1856,  the  legislature  passed  the  New  York 
Code  of  procedure  with  some  slight  modifications,  and  pro- 
vided that  it  should  go  into  effect  in  the  following  March. 
This  was  welcomed  as  a  great  reform  by  the  younger  men 
of  the  bar  and  by  the  people  at  large,  while  it  was  regarded 
as  a  dangerous  innovation  by  the  elder  lawyers  who  had 
passed  their  lives  under  the  common  law  system.  After  an 
experience  of  more  than  fifty  years  under  the  code  it  seems 
fair  to  say  that  the  results  have  been  in  the  main  satis- 
factory. It  is  true  that  it  has  not  resulted  in  the  elimination 
of  all  technicalities,  nor  has  it  made  it  possible  for  a  layman 
to  draw  his  own  pleadings  and  try  his  own  case,  as  some  of 


Whiton  s  Re-election  1 09 

its  enthusiastic  supporters  predicted,  but  on  the  other  hand 
it  must  be  regarded  as  a  long  step  in  the  direction  of 
simplifying  pleading  and  procedure  and  cutting  off  many  of 
the  very  technical  and  useless  refinements  which  had  grad- 
ually developed  in  the  old  common  law  system.  This  is 
largely  due  to  the  fact  that  Wisconsin  has  added  very  few 
amendments  to  the  original  code,  but  has  allowed  the  system 
to  develop  naturally  by  judicial  interpretation  and  thus  has 
escaped  the  infliction  of  a  vast  and  complicated  statutory 
system  of  pleading  and  procedure,  such  as  New  York  now 
has  and  which  seems  almost  as  cumbrous  and  artificial  as 
the  previous  system. 

The  term  of  Chief  Justice  Whiton  was  now  nearing  its 
close  and  the  election  of  his  successor  was  to  be  held  in 
April,  1857.  Whiton  was  personally  very  popular  and  his 
ability  and  integrity  of  character  were  fully  conceded  by  the 
Democrats,  but  it  could  hardly  be  expected  that  political 
considerations  could  now  be  laid  aside  in  view  of  the  vio- 
lence of  party  feeling  and  the  active  part  which  the  Court 
had  been  compelled  to  take  in  party  struggles,  both  state  and 
national. 

Early  in  the  year  1857  Whiton's  name  was  put  up  by 
Republican  newspapers  in  various  parts  of  the  state  and  in 
February  a  call,  largely  signed  by  electors  without  regard 
to  party,  was  presented  to  him  and  he  accepted.  Fremont 
had  carried  the  state  by  more  than  3,000  plurality  in  the 
presidential  election  of  1856  and  in  January,  1857,  the  Re- 
publicans had  elected  their  first  United  States  Senator  in 
the  person  of  James  R.  Doolittle  of  Racine,  but  the  Dem- 
ocrats were  still  in  possession  of  the  national  government, 
and  though  doubtful  of  success,  they  called  a  convention 
at   Madison   March  4,    1857,  and  nominated   Montgomery 


1  ]  0  The  Story  of  a  Great  Court 

M.  Cothren,  then  circuit  judge  of  the  fifth  circuit,  by  ac- 
clamation, as  Whiton's  successor. 

Judge  Cothren  was  a  very  able  man,  a  pronounced  Dem- 
ocrat and  had  taken  a  very  prominent  part  in  the  political 
and  judicial  life  of  the  territory  and  state.  He  was  an 
unsuccessful  candidate  for  the  office  of  Chief  Justice  twice 
and  for  associate  justice  once;  he  held  the  office  of  circuit 
judge  of  his  circuit  for  three  terms,  and  it  seems  that  he 
deserves  something  more  than  mere  casual  mention  in  a 
work  of  this  kind.  He  had  not  the  advantages  of  a  college 
education  or  even  of  academic  training,  but  he  made  his 
way  upward  through  a  laborious  childhood  and  youth  by 
his  own  almost  unaided  efforts. 

He  was  born  in  Yates  County,  New  York,  September  18, 
1 8 19,  of  parents  in  very  moderate  circumstances  and  came 
to  Michigan  with  his  father  in  1829,  where  he  remained 
until  1838,  assisting  in  the  cultivation  of  his  father's  farm 
and  taking  advantage  of  such  limited  elementary  educa- 
tional opportunities  as  the  pioneer  country  afforded.  At 
the  age  of  nineteen  he  started  for  Wisconsin,  intending  to 
teach  school  and  pursue  the  study  of  the  law.  For  about  a 
year  he  lived  near  Rockford,  Illinois,  and  at  the  age  of 
twenty  came  to  New  Diggings  in  Wisconsin,  where  he 
secured  a  position  as  school  teacher,  at  the  same  time  pur- 
suing the  study  of  the  law  as  he  could  find  time.  In  1843 
he  was  chosen  clerk  of  the  board  of  county  commissioners 
of  Iowa  County  and  removed  to  Mineral  Point,  which  re- 
mained his  home  ever  afterwards.  During  the  same  year 
he  was  admitted  to  the  bar  and  soon  afterwards  formed  a 
law  partnership  with  Parley  Eaton  and  the  firm  entered 
upon  a  prosperous  career,  largely  due  to  the  ability  and 
force  of  character  of  Mr.  Cothren. 


Whiton's  Re-election  1  I  1 

In  1847  and  1848  he  was  a  member  of  the  house  of  rep- 
resentatives of  the  territorial  legislature  and  in  1848  he  was 
elected  a  member  of  the  first  state  senate  from  the  counties 
of  Iowa  and  Richland  and  served  until  January  1,  185 1. 
He  was  chairman  of  the  joint  committee  of  the  legislature 
which  was  appointed  to  co-operate  with  the  revisers  of  the 
statutes  and  the  result  of  the  joint  action  of  the  revisers  and 
of  this  committee  was  the  Revised  Statutes  of  1849. 

In  1852  he  was  nominated  by  the  Democrats  for  the  office 
of  circuit  judge  of  the  fifth  circuit,  as  the  successor  of  Judge 
M.  M.  Jackson,  and  elected  by  a  large  majority.  In  the 
same  year  he  was  elected  a  presidential  elector  and  assisted 
in  casting  the  electoral  vote  of  Wisconsin  for  Pierce.  He 
was  a  delegate  to  the  Democratic  convention  held  at  Mad- 
ison in  August,  1852,  which  nominated  a  full  ticket  for  the 
separate  Supreme  Court  and  took  strong  ground  in  favor 
of  the  nomination  of  all  judges  by  party  conventions. 

Tn  1858  he  was  re-elected  as  circuit  judge  without  oppo- 
sition. In  1863  he  was  nominated  by  his  party  for  Chief 
Justice  against  Chief  Justice  Dixon  but  was  defeated,  and 
in  1879  he  was  put  in  the  field  by  a  Democratic  legislative 
caucus  as  a  candidate  for  associate  justice  against  Justice 
Cole  and  again  defeated.  From  January,  1865,  until  April, 
T876,  he  practiced  law,  but  in  April  of  the  last  named  year 
he  was  elected  to  the  circuit  bench  as  a  non-partisan  candi- 
date and  in  April,  1882,  was  defeated  for  re-election  by 
George  Clementson. 

After  this  defeat  he  again  took  up  the  practice  of  the  law 
and  so  continued  until  his  death  October  27,  1888. 

I  lis  lifelong  friend  and  neighbor,  Moses  M.  Strong,  in  his 
remarks  before  the  Supreme  Court  January  8,  1889/  gave 


1  73  Wis.  p.  xxix  et  seq. 


1  ]  2  The  Story  of  a  Great  Court 

an  estimate  of  his  character  as  a  man,  a  lawyer  and  a  judge, 
from  which  the  following  excerpts  are  taken: 

'•The  prominent  defect  in  the  character  of  Judge  Cothren  as  a 
lawyer  was  that  his  professional  like  his  scholastic  education  had 
been  fragmentary  and  without  system.  He  had  none  of  the  ad: 
vantages  of  law  schools,  or  lectures,  nor  even  the  benefit  of  a 
regular  course  of  study  under  the  supervision  of  any  competent 
lawyer.  Notwithstanding  these  embarrassments,  which  he  alone 
appreciated  at  their  full  importance,  the  uncommon  strength  of 
his  native  intellect,  his  quick  intuitive  perception  and  his  ready 
faculty  of  making  the  appropriate  application  of  the  proper  legal 
principle  to  each  case  as  it  arose,  enabled  him  to  overcome  the 
latent  defects  of  his  professional  education  to  such  an  extent  that 
to  the  layman  and  to  the  superficial  lawyer  genius  had  the  ap- 
pearance of  education,  and  tact  and  intuitive  perception  effec- 
tually concealed  any  lack  of  professional  education.  It  was  in 
the  trial  of  jury  cases,  the  examination  of  witnesses  and  in  argu- 
ments to  the  jury  that  Judge  Cothern  won  his  principal  distinc- 
tion as  a  lawyer.  To  his  intellectual  and  perceptive  faculties,  to 
his  genius  and  tact,  were  added  a  wonderful  knowledge  of  human 
nature  and  of  the  influences  which  affect  human  action.  The 
confidence  which  was  reposed  in  his  integrity  and  his  unswerving 
devotion  to  truth  and  honesty  by  all  with  whom  he  came  in  con- 
tact was  unlimited.  His  warm  sympathy  with  all  the  better  feel- 
ings of  our  nature  permeated  his  whole  life.  His  generous  and 
noble  nature  and  his  universal  self  sacrificing  love  of  his  fellow 
men  seemed  to  attach  all  to  him.  These  elements  of  his  character 
gave  him  such  an  influence  over  the  hearts  of  witnesses,  jurors 
and  all  whose  concurrent  thought  and  action  he  desired,  that  his 
power  over  them  may  most  appropriately  be  called  magnetic. 
Possessing  these  faculties,  he  supplemented  them  in  arguing  a 
case  to  the  jury  by  an  intelligent  and  attractive  mode  of  arranging 
for  their  consideration  the  issues  presented  by  the  case,  a  clear 
and  fair  statement  of  the  facts  and  evidence  of  facts  existing  in 
the  case,  as  well  against  him  as  in  his  favor,  superadded  to  which 
he  made  the  most  powerful  arguments  sustained  by  analytical  and 
synthetical  reasoning  of  which  the  case  admitted. 

"Called  to  the  bench  at  the  early  age  of  thirty-three,  with  only 
nine  years  practice  at  the  bar,  it  would  have  been  wonderful  in- 
deed if  the  manner  in  which  he  discharged  the  duties  of  his  posi- 
tion had  not  elicited  criticism.  He  had  from  the  beginning  of 
his  term  a  modest  diffidence  of  his  ability,  but  it  was  overweighed 


Whiton's  Re-election  1  1 3 

by  a  sensitive  consciousness  of  the  integrity  of  his  intentions  and 
an  inflexible  determination  that  truth  and  justice  should  be  his 
guiding  star  which  under  all  circumstances  he  would  impartially 
follow  without  fear  or  favor,  and  that  he  would  administer  the 
law  as  he  understood  it,  according  to  the  best  lights  which  had 
been  vouchsafed  to  him.  This  determination,  upon  which  he 
ever  acted,  always  sustained  him,  and  if  it  led  him  into  any  error 
he  knew  and  all  knew  that  it  was  of  a  character  which  is  ever 
liable  to  result  from  the  infirmities  and  ignorance  of  the  most 
perfect  of  men.  To  parties  litigant  every  reasonable  opportunity 
was  always  afforded  of  presenting  the  whole  cause  of  action  or 
their  whole  line  of  defense.  To  attorneys  and  counsel  the  judge, 
while  careful  to  maintain  the  observance  of  the  duty  due  from 
them  to  the  bench,  was  as  scrupulously  observant  of  every  right 
and  courtesy  due  to  the  members  of  the  bar.  He  appeared  to 
act  upon  the  apothegm  of  Lord  Bacon  in  his  essays,  that  'patience 
and  gravity  of  hearing  is  an  essential  part  of  justice  and  an  over- 
speaking  judge  is  no  well  tuned  cymbal.  It  is  no  grace  to  a  judge 
first  to  find  that  which  he  might  have  heard  in  due  time  from  the 
bar,  or  to  show  quickness  of  conceit  in  cutting  off  evidence  or 
counsel  too  short'  To  jurors  he  was  (to  quote  Bacon  again)  'a 
light  to  open  their  eyes,  but  not  a  guide  to  lead  them  by  their 
noses.'  His  charges  w'ere  always  fair  and  perspicuous,  and,  if 
exceptionable,  a  fair  bill  of  exceptions  could  always  be  obtained, 
as  it  could  upon  all  questions  arising  in  the  progress  of  the  trial. 
Witnesses  were  always  protected  by  the  judge  from  any  improper 
or  impertinent  examination. 

"The  predominant  trait  in  the  character  of  Judge  Cothren — 
the  one  uniformly  recognized  as  such  by  all  his  large  circle  of 
friends — was  his  charity  in  the  most  enlarged  meaning  of  the 
word.  *  *  *  So  far  from  indulging  in  expressions  of  malice 
or  unkindness  to  any,  it  was  his  uniform  habit  to  speak  well  of 
all,  and  if  that  could  not  be  done  with  conscientious  regard  for 
truth,  to  give  them  the  charity  of  his  silence.  But  his  charity,  in 
the  more  popular  and  limited  sense  of  beneficience,  was  great  and 
characteristic.  He  visited  the  sick,  clothed  the  naked,  fed  the 
hungry,  and  never  refused  charitable  aid  to  the  deserving  poor. 
His  uniform,  unswerving  integrity  was  a  marked  feature  of  his 
character,  not  alone  in  the  more  restricted  sense  of  fidelity  to  his 
pecuniary  obligations,  but  with  reference  to  all  his  duties  to  so- 
ciety and  his  fellow  men.  While  he  had  that  dignity  of  character 
which  always  commanded  the  respect  and  appreciation  of  all  who 
met  him,  he  was  one  of  the  most  approachable  and  social  of  man- 


1  1 4  The  Story  of  a  Great  Court 

kind  and  enjoyed  the  kindest  regards  of  hosts  of  friends.  To 
young  man  and  especially  to  young  lawyers  he  extended  the  kind- 
est consideration  and  the  assistance  of  his  friendly  counsel  and 
advice." 

Mr.  Berryman,  in  his  history  of  the  Bench  and  Bar  (Vol. 

2,  p.  160)  says  of  him: 

"As  a  natural  result  of  his  meditative  cast  of  mind,  we  find  him 
pondering  deeply  over  religious  matters,  and  quite  as  naturally, 
shifting  about  as  his  convictions  altered  in  the  effort  to  find  firm 
ground.  He  was  brought  up  in  the  Presbyterian  sect.  In  1857  he 
was  confirmed  by  Bishop  Kemper  in  the  Protestant  Episcopal 
Church,  but  did  not  permanently  continue  that  relation.  At  one 
time  he  was  a  devout  Methodist;  at  another  he  investigated  the 
Catholic  creed,  ritual  and  ceremonies,  declaring  it  to  be  the  only 
true  church.  He  did  not,  however,  give  practical  effect  to  his 
inclinations  in  this  direction.  Later  he  stated  that  Beecher  was 
preaching  the  only  consistent  doctrine  of  the  age,  and  still  later 
took  up  the  study  of  Swedenborg's  writings  and  was  so  deeply  in- 
terested in  them  that  he  became  a  firm  disciple  of  his  faith,  which 
he  openly  avowed  and  consistently  practiced  until  his  death.  He 
was  a  believer  in  the  communication  of  those  gone  before  with 
those  still  in  mortal  garments  dressed,  affirming  his  own  ex- 
perience of  the  truth  of  the  tenets  of  spiritualism.  He  loved  and 
honored  his  profession  with  an  unchangeable  devotion  and  never 
violated  its  ethics  or  amenities.  His  faults  were  the  result  of 
frontier  civilization;  they  were  superficial.  The  sterling  worth 
of  the  man  shone  through  them  as  the  sun  through  the  mists. 
His  frailties  will  be  soon  forgotten,  while  his  good  heart  and  right 
mind  will  live  on." 

The  contest  between  these  two  eminent  citizens  was  es- 
sentially a  party  contest.  No  serious  question  was  raised 
as  to  the  ability  of  either,  but  Judge  Whiton's  re-election 
was  urged  by  Republican  newspapers  principally  because  of 
his  record  on  the  fugitive  slave  law  and  Judge  Cothren  was 
denounced  as  a  friend  of  human  slavery. 

The  Milwaukee  Sentinel  of  March  31,  1857,  said  in  bold 
capitals  "The  issue  of  Freedom  or  Slavery  is  upon  us ;  we 
cannot  shrink  from  it  if  we  would." 


Whiton' s  Re-election  1  1  5 

On  the  other  hand,  the  Madison  Patriot  (Dem.)  in  March, 
1857,  said  that  Whiton  was  above  reproach  and  "aside  from 
his  views  on  the  fugitive  slave  law  question  we  honor  him 
as  a  judge,  but  on  that  subject  the  Democratic  party  is  com- 
pelled to  wage  a  warfare  against  him,  and  with  the  revolu- 
tion which  is  now  going  on  in  the  public  mind  he  may  be 
compelled  to  bow  before  the  sober  second  thought  of  the 
people,  and  yield  the  robe  of  office  to  one  whose  principles 
are  more  in  harmony  with  our  union  and  the  genius  of  our 
institutions,   both   state   and   national." 

However,  the  "sober  second  thought"  of  the  people  had 
not  yet  come,  the  great  personal  popularity  of  Judge  Whiton 
made  the  campaign  against  him  a  hopeless  one  and  he  was 
re-elected  by  a  majority  of  more  than  10,000  votes. 


1  1 6  The  Story  of  a  Great  Court 

CHAPTER  XI 

THE    LAST    VICTORY    OF    THE    STATE    RIGHTS    IDEA 

Sweeping  as  Chief  Justice  Whiton's  triumph  was  it  was 
not  certain  how  much  of  it  was  due  to  the  great  respect  felt 
for  him  by  the  people  at  large  and  how  much  to  his  prestige 
as  the  sitting  judge.  Another  contest  was  rapidly  approach- 
ing, however,  in  which  there  would  be  no  such  advantages 
on  either  side;  a  contest  in  which  man  was  to  be  pitted 
against  man  and  principle  against  principle  and  in  which 
the  people  would  be  called  on  to  pass  upon  the  simple  issue 
whether  any  man  who  believed  in  the  supremacy  of  the 
federal  courts  on  federal  questions  should  have  a  seat  on 
the  Supreme  bench  of  Wisconsin. 

Justice  Smith's  term  was  next  to  expire  and  the  election 
to  choose  his  successor  was  to  take  place  in  April,  1859. 
Justice  Smith  was  a  man  of  strong  and  original  mind  and 
of  tireless  industry.  He  had  taken  the  lead  in  the  ultra 
state  rights  position  assumed  by  the  Court.  In  so  doing  he 
had  followed  his  own  honest  convictions,  but  he  had  also 
severed  himself  from  the  great  body  of  the  Democrats  of 
the  north  in  general  and  of  Wisconsin  in  particular.  He 
was  a  man  without  a  party.  There  were  indeed  many  in 
the  Republican  party  who  were  enthusiastically  of  the 
opinion  that  he  should  be  endorsed  by  that  party  for  re- 
election on  account  of  his  stand  in  the  Booth  case,  but 
there  was  another  figure  which  that  famous  litigation  had 
brought  to  the  front,  a  youthful,  almost  romantic,  figure, 
which  overshadowed  all  others  and  that  was  the  figure  of 
Byron  Paine,  the  champion  of  the  fugitive  slave.     In  1856, 


The  Last  Victory  of  State  Rights  1  1  7 

when  but  twenty-nine  years  of  age,  he  had  been  appointed 
county  judge  of  Milwaukee  County  in  place  of  Charles  E. 
Jenkins,  who  had  resigned,  and  he  had  been  triumphantly 
elected  to  that  position  in  the  following  spring  and  to  the 
great  majority  of  Republicans  he  seemed  to  be  the  natural 
candidate. 

On  the  evening  of  March  3,  1859.  a  caucus  of  Repub- 
lican members  of  the  legislature  and  other  prominent  leaders 
of  the  party  was  held  at  Madison  at  which  Judge  Paine  was 
nominated  and  an  address  issued  calling  on  the  people  to 
elect  him,  declaring  that  the  issue  was  between  slavery  and 
liberty. 

On  the  same  day  a  Democratic  convention,  called  by  the 
state  central  committee,  had  been  held  at  Madison  and  Wil- 
liam Pitt  Lynde,  an  eminent  lawyer  of  Milwaukee,  had  been 
unanimously  nominated.  When  this  nomination  was  made 
Mr.  Ryan,  who  was  a  member  of  the  convention,  thanked 
the  convention  on  Mr.  Lynde's  behalf  and  said  that  he 
hoped  to  see  the  Court  brought  back  into  sound,  consti- 
tutional hands  again.  Thus  the  battle  between  so-called 
federal  usurpation  and  state  rights  was  again  on.  The  con- 
test was  strictly  a  party  contest  and  was  fought  with  all  the 
bitterness  of  such  contests. 

There  was  some  dissatisfaction  at  first  on  the  part  of 
many  Republicans  because  they  thought  Judge  Smith  fairly 
deserved  re-election  because  of  his  state  rights  views.  Prior 
to  the  legislative  caucus  calls  and  petitions  numerously 
signed  had  been  sent  to  him  requesting  him  to  run;  there 
were  about  forty  Republican  papers  in  the  state  and  a  num- 
ber of  them  had  already  put  his  name  at  the  head  of  their 
columns,  among  which  were  the  Sparta  Herald,  the  Racine 
Journal,  the  Ripon  Times  and  the  Neenah  and   Menasha 


1  1 8  The  Story  of  a  Great  Court 

Conservator.1  Some  Republican  indignation  meetings  seem 
to  have  been  held  after  Judge  Paine's  nomination.2 

On  the  fifteenth  of  March,  however,  Judge  Smith  in  a 
long  communication  to  the  Free  Democrat  declined  to  run 
on  the  ground  that  party  nominations  had  been  made  and 
clear  issues  raised  which  he  did  not  wish  to  embarrass  in 
any  way.  The  Republican  papers  fell  into  line  and  on 
March  2 ist  the  Wisconsin  State  Journal  announced  that 
every  Republican  paper  in  the  state  carried  the  name  of 
Judge  Paine  at  its  head. 

Curiously  enough  the  Supreme  Court  of  the  United  States 
decided  the  Booth  case  on  March  J,  1859,  and  reversed  the 
decision  of  the  Supreme  Court  of  Wisconsin  discharging 
Booth.  As  has  been  before  stated,  the  opinion  was  written 
bv  Chief  Justice  Taney  with  characteristic  clearness  of 
statement  and  cogency  of  reasoning  and  laid  down  the 
broad  proposition  (now  unquestioned)  that  the  state  courts 
had  no  power  to  interfere  with  the  execution  of  the  process 
or  judgments  of  the  United  States  courts.3  The  Repub- 
licans of  Wisconsin  were  in  no  mood  to  chop  logic  with  any 
one  and  certainly  not  with  the  judge  who  had  written  the 
Dred  Scott  case.  When  passions  are  deeply  aroused  reason- 
ing cuts  little  figure,  except  perhaps  to  intensify  the  passion 
in  proportion  to  the  convincing  power  of  the  opponent's 
reasoning. 

Public  indignation  was  intense ;  denunciation  of  the  fed- 
eral courts  and  of  the  federal  government  ran  riot  in  the 
Republican  newspapers  and  at  indignation  meetings  all  over 
the  state.  The  legislature  which'  was  then  in  session  and 
strongly   Republican   in  both  branches    (William   P.   Lyon 


1  Fond  du  Lac  Commonwealth,  March  9,  1859. 

2  Madison  Argus  and  Democrat,  March  31,  1859. 
s  Ableman  v.  Booth,  21  Howard,  506. 


BYRON  PAINE. 


The  Last  Victory  of  State  Rights  1  1 9 

of  Racine  being  speaker  of  the  Assembly)   passed  the  fol- 
lowing resolutions,  which  were  approved  by  the  Governor 

March  19th: 

"WHEREAS,  The  Supreme  Court  of  the  United  States  has  as- 
sumed appellate  jurisdiction  in  the  matter  of  the  petition  of 
S.  M.  B'ooth  for  a  writ  of  habeas  corpus,     *     *     *     and 

"WHEREAS,  Such  assumption  of  power  and  authority  by  the 
Supreme  Court  of  the  United  States  to  become  the  final  arbiter  of 
the  liberty  of  the  citizens  and  to  override  and  nullify  the  judg- 
ments of  the  State  Court's  declaration  thereof  is  in  distinct  con* 
flict  with  that  provision  of  the  Constitution  of  the  United  States 
which  secures  to  the  people  the  benefit  of  the  writ  of  habeas  cor- 
pus; therefore, 

"Resolved,  the  Senate  concurring,  That  we  regard  the  action  of 
the  Supreme  Court  of  the  United  States  in  assuming  jurisdiction 
in  the  case  before  mentioned  as  an  arbitrary  act  of  power  unau- 
thorized by  the  Constitution  and  virtually  superseding  the  benefit 
of  the  writ  of  habeas  corpus  and  prostrating  the  rights  and  liber- 
ties of  the  people  at  the  foot  of  unlimited  power. 

"Resolved,  That  this  assumption  of  jurisdiction  by  the  federal 
judiciary  in  the  said  case  and  without  process  is  an  act  of  undele- 
gated power  and  therefore  without  authority  and  void  and  of  no 
force; 

"Resolved,  That  the  government  formed  by  the  Constitution  of 
the  United  States  was  not  made  the  exclusive  or  final  judge  of  the 
extent  of  the  powers  delegated  to  itself;  but  that  as  in  all  other 
cases  of  compact  among  parties  having  no  common  judge,  each 
party  has  an  equal  right  to  judge  for  itself  as  well  of  infractions 
as  of  the  mode  and  measure  of  redress. 

"Resolved,  That  the  principle  and  construction  contended  for 
by  the  party  which  now  rules  in  the  councils  of  the  nation  that  the 
general  government  is  the  exclusive  judge  of  the  extent  of  the 
powers  delegated  to  it,  stop  nothing  short  of  despotism;  since  the 
discretion  of  those  who  administer  the  government,  and  not  the 
constitution  would  be  the  measure  of  their  powers;  that  the  sev- 
eral states  which  formed  that  instrument,  being  sovereign  and 
independent,  have  the  unquestionable  right  to  judge  of  its  infrac- 
tion; and  that  a  positive  defiance  of  those  sovereignties  of  all  un- 
authorized acts  done  or  attempted  to  be  done  under  color  of  that 
Instrument  is  the  rightful  remedy."'* 


*  Session  laws  of  1859,  p.  247. 


1  20  The  Story  of  a  Great  Court 

These  resolutions  are  practically  a  literal  copy  of  the 
famous  Kentucky  resolutions  of  1798  with  the  words  "posi- 
tive defiance"  inserted  in  place  of  the  unpopular  word 
"nullification."  The  doctrine  of  state  rights  could  go  little 
further;  "positive  defiance"  means  effective  defiance  and 
effective  defiance  means  war  or  it  means  nothing.  That  the 
resolutions  voiced  the  sentiment  of  the  great  mass  of  the 
Republicans  of  the  state  there  can  be  no  doubt ;  the  Repub- 
lican newspapers  supported  them  with  practical  unanimity 
and  mass  meetings  were  held  in  all  parts  of  the  state  ap- 
proving of  the  position  taken  by  the  legislature  and  calling 
upon  the  people  to  ratify  them  at  the  polls  by  electing  Paine. 

Carl  Schurz,  then  a  young  man  and  a  power  in  the  politics 
of  the  state,  threw  himself  into  the  fight  upon  Paine's  side 
with  all  the  enthusiasm  of  his  nature;  in  a  speech  at  Mil- 
waukee, March  23rd  he  made  a  long  and  brilliant  argument 
for  state  sovereignty  and  closed  with  the  following  pero- 
ration : 

"Our  poor  state  has  suffered  much,  its  credit  is  ruined,  its  pros- 
perity blighted,  its  political  honor  has  been  forfeited  by  whole- 
sale corruption  and  maladministration.  There  is  almost  nothing 
to  be  proud  of  but  the  gallant  independence  of  our  Supreme  Court 
and  the  spirit  of  liberty  which  caused  the  people  to  sustain  them. 
Will  you  sacrifice  that  also?  Will  you  suffer  the  enemies  of  your 
liberties  to  nestle  in  your  own  citadel?  Will  you  see  Judge  Mil- 
ler's opinions  and  pretensions  infest  the  highest  court  of  this 
state?  (Cries  of  no!  never!)  Will  you  see  the  dirty  fingermarks 
of  Buchanan's  administration  on  the  Supreme  Bench  of  Wiscon- 
sin? If  not,  place  a  man  there  who  dares  to  be  himself.  Let  the 
friends  of  liberty  and  self-government  present  an  unbroken  front. 
Their  banner  bears  the  inscription,  'State  rights  and  Byron 
Paine.' " 

The  Milwaukee  Sentinel  of  March  23rd  said: 
"Can  there  be  any  doubt  what  the  decision  of  the  people  of  Wis- 
consin will  be  in  the  contest  between  federal  usurpation  and  state 
rights,  between  slavery  and  freedom?" 


The  Last  Victory  of  State  Rights  1  2 1 

The  Wisconsin  State  Journal,  in  an  appeal  to  the  voters, 
of  April  i st,  said: 

"Will  freeman  of  Wisconsin  have  an  able,  honest  and  responsible 
elective  judiciary  of  their  own  choice,  or  shall  they  have  a  servile, 
irresponsible  federal  court  with  life  lease  judges?  Shall  one  man 
or  the  people  rule?  Shall  the  Supreme  Court  of  Wisconsin  be 
obliterated  and  superseded  by  Judge  Miller  and  the  Southern 
Democratic  judges  at  Washington?" 

Mr.  Lynde  stood  squarely  upon  the  doctrine  that  in 
matters  touching  the  constitution  and  laws  of  the  United 
States,  the  decision  of  the  Federal  Courts  must  be  final  and 
conclusive.  Election  day  came ;  Byron  Paine  received  a 
majority  of  more  than  8,ooo  votes  as  actually  cast  but  owing 
to  defects  in  the  returns  many  counties  were  thrown  out 
and  the  official  canvass  gave  him  a  majority  of  only  2,i45.5 
The  people  had  deliberately  approved  the  doctrine  that  the 
state  could  and  should  nullify  and  defy  a  law  of  the  United 
States  which  the  Federal  Courts  had  pronounced  constitu- 
tional and  valid,  provided  such  law  was  thought  by  the 
courts  of  the  state  to  be  unconstitutional. 

It  is  not  to  be  understood,  however,  that  all  Republicans 
approved  of  the  extreme  position  of  the  past  on  the  question 
of  state  rights.  There  were  some  able  men,  and  among 
them  Judge  Timothy  O.  Howe  of  Green  Bay,  who  had  no 
sympathy  with  state  rights  and  nullification  doctrines,  but 
who  were  unable  to  stem  the  current  and  stood  aloof  from 
the  campaign.  After  the  election  the  Free  Democrat  of 
Milwaukee  stated  that  Judge  Howe  had  voted  for  Mr. 
Lynde.  To  this  Judge  Howe  replied  in  an  open  letter  in 
effect  stating  that  he  voted  for  neither,  and  that  he  wishes 
to  save  the  party  from  the  great  fundamental  political 
heresy  of  state  rights  and  nullification. 


o  Wisconsin  State  Journal,  April  20th  and  May  9th,  1859. 


1 22  The  Story  of  a  Great  Court 


CHAPTER  XII 

THE    ADVENT    OF    LUTHER    S.     DIXON    AND    THE    CAMPAIGN 

OF    i860 

Only  a  few  days  after  this  complete  victory  of  the  state 
rights  doctrine  the  Court  lost  its  chief  by  death.  The  much 
loved  and  honored  Whiton  had  been  sick  for  some  weeks 
and  had  temporarily  retired  from  the  bench  in  the  hope  of 
regaining  his  health,  but  it  was  not  to  be,  and  on  the  twelfth 
of  April,  1859,  he  died  at  Janesville,  universally  mourned. 
One  week  later  Governor  Randall  appointed  Luther  S. 
Dixon  to  fill  the  vacancy  and  he  took  his  seat  the  beginning 
of  the  June  term  following.  Dixon  had  just  reached  his 
thirty-fourth  year  and  had  been  but  nine  years  at  the  bar. 
The  following  extracts  from  the  memorial  of  the  state  bar 
association  gives  the  events  of  his  life  in  brief  prior  to  his 
elevation  to  Supreme  bench  : 1 

"Luther  S.  Dixon  was  born  in  Milton,  in  the  valley  of  the 
Lamoille  in  the  state  of  Vermont  June  17,  1825,  of  the  sturdy 
stock  of  the  New  England  farmers  of  the  early  part  of  the  century. 
After  laying  the  foundation  of  a  good  English  education  in  com- 
mon schools  and  academies  he  entered  the  military  school  at  Nor- 
wich in  that  state,  then  under  the  conduct  of  instructors  of  marked 
ability.  There  he  ranked  high  as  a  cadet  and  was  an  excellent 
scholar  in  Latin.  There  he  received  the  thorough  instruction,  se- 
vere mental  and  physical  discipline  so  valuable  in  forming  char- 
acter. After  teaching  school  to  procure  the  means  of  prosecuting 
his  studies,  he  entered  upon  the  reading  of  law  in  the  office  of 
Hon.  Luke  P.  Poland,  then  of  high  standing  among  the  lawyers  of 
Vermont.  He  was  admitted  to  the  bar  in  1850.  The  west  was 
then  the  inviting  field  to  the  young  men  of  New  England,  and 

1  SI  Wis.  p.  xxxi. 


Dixon  and  the  Campaign  of  1 860  1  23 

Wisconsin  was  regarded  as  well  out  on  on  the  frontier.  The 
young  lawyer  established  himself  at  Portage  in  this  state  about 
the  year  1851  and  entered  upon  the  practice.  His  sterling  quali- 
ties drew  him  clients  and  he  was  twice  elected  district  attorney 
of  Columbia  County,  serving  with  zeal  and  fidelity.  In  1858  upon 
the  retirement  of  Hon.  A.  L.  Collins,  he  was  appointed  judge  of 
the  ninth  judicial  circuit,  the  duties  of  which  office  he  discharged 
with  such  marked  ability  as  to  give  great  satisfaction  to  the  bar, 
then  composed  of  some  of  the  most  distinguished  and  able  prac- 
titioners of  the  state." 

Of  his  life  at  Portage,  Judge  Chester  A.  Fowler  of  Fond 
du  Lac  writes  as  follows  in  a  very  appreciative  sketch  of 
Judge  Dixon's  life,  read  before  the  Wisconsin  Bar  Asso- 
ciation in  July,  1908,  and  printed  in  Vol.  8  of  the  Reports 
of  that  Association,  at  page  173  : 

"Portage  was  then  a  thriving  and  promising  frontier  town.  It 
was  quite  widely  known  through  occupying  the  site  of  old  Fort 
Winnebago.  Being  at  "the  portage"  between  the  Fox  and  Wiscon- 
s'n  rivers,  a  canal  had  just  been  constructed  connecting  the  two 
rivers,  and  establishing  a  water-way  from  the  Mississippi  Valley 
through  the  great  lakes  to  the  Atlantic  ocean.  In  those  days  of 
steamboat  transportation  the  little  city  bid  fair  to  become  a  port 
of  entry.  It  was  then  the  headquarters  of  the  old  "pinery"  trade. 
With  the  outfitting  of  lumbermen,  the  supplying  of  camps  and  the 
trade  of  rivermen,  the  town  was  full  of  business  and  life.  It  had 
attracted  a  bar  of  eminence.  I  have  been  told  by  many  mem- 
bers of  the  old  bar  of  the  state  not  resident  of  Portage  that  in  the 
old  days  the  Portage  bar  was  considered  as  one  of  the  very  best  in 
the  state. 

"These  matters  no  doubt  had  their  influence  in  attracting  your 
Dixon.  He  was  not  long  in  making  friends  and  securing  a  foot- 
hold in  his  profession.  At  the  September  term  of  the  circuit  court 
after  his  admission  I  find  him  appearing  to  some  extent.  From 
that  time  on  his  appearances  become  more  and  more  numerous, 
and  in  three  or  four  years  he  was  occupying  a  leading  position  at 
the  local  bar.  His  splendid  personal  appearance  and  attractive 
manners  would  have  made  it  easy  for  a  man  of  ordinary  ability  to 
establish  himself.  While  dignified  and  stately  in  his  demeinor 
and  bearing  and  somewhat  reservf  d  in  his  manner  and  in  general 
intercourse,  he  was  approachable  and  companionable,  and  sociable, 
thoroughly   likeable  and   of  winning  personality  in   every   way. 


1  24  The  Story  of  a  Great  Court 

These  qualities,  added  to  his  abilities,  made  his  progress  rapid. 
The  year  after  locating  at  Portage  he  was  elected  district  attorney, 
and  two  years  later  re-elect)  d. 

"Dixon  did  not  in  the  days  of  his  early  practice  prosecute  the 
study  of  the  law  with  remarkable  industry.  The  cases  he  had  he 
prepared  thoroughly  and  well,  but  it  was  only  in  connection  with 
these  cases  and  along  lines  of  general  public  interest  that  he  read 
much  law.  He  took  no  part  in  the  discussion  of  the  public  ques- 
tions of  the  time.  He  was  no  politician.  While  he  at  first  affili- 
ated with  and  was  elected  to  office  as  a  member  of  the  Democratic 
party,  he  quite  as  often  sided  during  the  early  fifties,  when  he 
expressed  himself  at  all,  against  his  party  as  with  it  upon  the 
burning  questions  of  the  day,  and  it  was  not  long  before  his 
dt  mocracy  came  to  be  rated  as  questionable,  and  he  gradually 
came  to  be  considered  a  Republican  after  the  formation  of  that 
party.  In  a  year  or  so  Dixon  associated  with  him  in  practice 
Guy  C.  Prentiss,  whom  he  had  known  in  Vermont  and  who  fol- 
lowed him  from  that  state,  and  later  Emmons  Taylor,  also  from 
Vermont,  who  succeeded  to  his  practice  on  his  going  upon  the 
bench.  His  practice  seems  to  have  been  entirely  local.  He  was 
more  commonly  than  anyone  else  the  associate  and  advisor  of 
attorneys  younger  in  the  practice,  whom  he  always  received  with 
cordiality  and  upon  terms  of  perfect  equality  and  treated  with 
unfailing  courtesy  and  kindness.  He  came  finally  to  be  re- 
tained locally  on  one  side  or  the  other  of  nearly  or  quite  all 
cases  of  importance.  A  few  of  these  were  of  a  nature  to  give 
him  some  considerable  local  prominence,  notably  one  or  two 
cases  of  contested  election,  and  a  murder  case  which  he  ably 
prosecuted  against  two  eminent  attorneys  from  away.  His  su- 
preme court  practice  was  not  extensive.  I  find  him  or  his  firm 
named  as  counsel  in  eight  cases  from  the  1st  to  the  5th  Wis- 
consin Reports.  In  all  of  these  but  two,  however,  he  appears 
on  the  winning  side.  Only  one  of  these  cases  appears  to  have 
involved  any  question  of  importance;  this  lays  down  the  rule 
as  to  estates  in  entirety.  Dixon  was  not  considered  particularly 
strong  as  a  jury  lawyer,  although  he  could  state  his  case  to  a 
jury  or  court  with  clearness  and  precision,  or  present  an  orderly 
and  logical  argument.  He  seems  not  to  have  been  strongly 
litigious.  In  no  case  in  the  supreme  court  does  he  appear  for 
the  appealing  party.  It  was  as  he  said  of  his  former  partner, 
Emmons  Taylor,  upon  the  latter's  death,  'in  his  capicity  of 
counsel,  in  his  office,  where  every  lawyer  is  a  judge,  and  where 


LUTHER  SWIFT  DIXON. 
At  the  age  of  40  years. 


Dixon  and  the  Campaign  of  1 860  1  25 

in  matters  not  litigated,  vastly  exceeding  those  which  are,  he 
decides  all  questions,'  that  he  was  at  his  hest.  Here,  as  he 
again  says  of  Mr.  Taylor,  whose  conduct  as  a  lawyer  was  largely 
influenced  by  his  early  association  with  Judge  Dixon  and  whose 
eminent  and  worthy  career  as  such  was  largely  due  to  emulation 
of  his  example,  'his  learning,  his  ability,  his  truth  and  integrity 
were  invaluable.  How  many  lawsuits  has  he  not  saved,  how 
much  litigation,  strife  and  bitterness,  and  useless  expense,  by 
his  prudent  and  sagacious  advice.  He  was  always  a  pacificator, 
when  pacification  was  proper  and  possible.  He  knew  nothing 
about  that  art  vicious  in  itself  and  disgraceful  in  those  who 
practice  it,  which  fosters  and  foments  useless  litigation.'  It  was 
because  Dixon  held  and  put  in  practice  these  views,  that  he  was 
so  highly  and  universally  esteemed  at  his  old  home.  His  ex- 
treme popularity  here  is  perhaps  attested  by  the  fact  that  while 
he  was  elected  to  the  office  of  district  attorney  as  a  Democrat, 
his  successor,  who  was  a  Republican,  was  elected  by  a  majority 
greater  than  the  entire  vote  of  his  opponent.  It  was  of  course 
a  time  of  great  political  changes,  when  the  Whig  party  was 
breaking  up  and  re-alignment  of  Democrats  was  taking  place,  but 
Dixon's  local  popularity  in  the  days  before  he  was  judge,  is 
sufficiently  attested  by  men  still  living  who  knew  of  it  per- 
sonally. This  popularity  was  of  the  kind  that  springs  from 
respect  and  esteem.  Dixon  was  not  the  sort  of  a  man  with 
whom  people  generally  are  familiar.  He  did  not  cultivate 
acquaintance,  and  had  comparatively  few  intimates. 

"Once  after  locating  at  Portage  Dixon  took  a  trip  to  Minne- 
sota with  a  view  of  bettering  his  situation,  but  finding  nothing 
more  attractive  he  returned  to  his  friends  at  Portage  and  set- 
tled down  with  the  expectation  of  passing  his  days  in  the  prac- 
tice of  his  profession  among  them.  He  built  the  first  brick 
residence  in  the  city,  which  still  stands,  although  enlarged  and 
remodeled  since  he  left  it.  He  took  his  place  in  the  social  and 
civic  life  of  the  place,  doing  his  part  in  both.  He  was  the 
aldermnn  from  his  ward  the  year  before  he  went  upon  the 
circuit  bfinch,  and  some  of  the  old  residents  still  remember  Mrs. 
Dixon's  first  appearance  at  a  ball,  with  her  husband,  soon  after 
he  brought  her  from  his  old  home  in  Vermont  as  his  bride.  The 
friends  he  madp  at  Portage  remained  dear  to  him,  as  he  did  to 
them,  to  the  last  days  of  his  life.  Tn  a  letter  read  at  memorial 
exercises  in  honor  of  Emmons  Taylor,  whom  I  have  before  re- 


26  The  Story  of  a  Great  Court 


f<  nod  to,  he  speaks  of  some  of  these  friends  in  terms  of  deepest 
and  most  sincere  affection. 

"I  doubt  if  Dixon  ever  entertained  for  any  other  man  such 
strong  and  tender  affection  as  he  felt  for  Mr.  Taylor.  Of  him 
Dixon  said:  'His  social  qualities,  I  may  safely  say,  were  more 
pleasing  and  attractive  than  those  of  any  person  I  have  ever 
met.'  He  also  refers  to  'the  many  hours  he  had  listened'  to  the 
readings  to  him  of  this  friend  from  poetry  and  fiction,  and  to 
him  as  'agreeable  in  all  his  intercourse,  fond  of  anecdote  and 
appreciating  humor' — words  which  apply  with  equal  force  to 
Dixon  himself.  Dixon  enjoyed  the  society  of  this  friend  as  long 
as  he  lived  as  he  did  that  of  no  one  else,  and  at  his  grave  mingled 
his  tears  with  those  of  the  immediate  family.  This  is  of  course 
of  no  importance  except  as  it  may  show  the  inherent  tenderness, 
simplicity  and  faithfulness  of  Judge  Dixon's  nature,  and  the 
warmth  and  depth  and  lasting  tenure  of  his  affections,  and  serve 
to  expl.iin  the  contentment  with  early  conditions  that  might 
otherwise  seem   strange. 

"With  his  surroundings  and  associates  in  the  frontier  com- 
munity where  he  lived,  and  such  practice  and  professional  em- 
ployment as  they  brought  him,  Dixon  was  content.  He  had  no 
desire  or  thought  of  judicial  position,  so  far  as  any  of  his  friends 
ever  knew.  His  appointment  to  the  circuit  bench  was  entirely 
unsought,  and  came  as  a  surprise  to  himself  and  friends.  He 
did  not  at  once  accept,  and  it  was  thought  he  might  decline. 
A  meeting  of  the  local  bar  was  held,  and  resolutions  were  passed 
strongly   urging  his  acceptance. 

"Though  while  at  practice  Dixon  became  recognized  where 
known  as  a  lawyer  of  more  than  ordinary  ability,  the  excep- 
tional mental  powers  and  qualities  that  he  afterwards  displayed 
upon  the  supreme  bench  were  hardly  suspected  by  his  most  in- 
timate friends,  and  upon  his  appointment  as  circuit  judge  those 
who  best  knew  him  hardly  anticipated  that  he  would  measure 
up  to  the  high  standard  of  excellence  with  which  he  immediately 
began  to  administer  that  office.  He  was  appointed  by  Gov.  Ran- 
dall in  1858  judge  of  the  ninth  judicial  circuit,  to  succeed  Judge 
Collins,  who  had  resigned  to  resume  practice.  The  circuit  then 
embraced  the  counties  of  Jefferson,  Dane,  Sauk  and  Columbia, 
and  the  bar  was  one  of  great  ability  and  rather  critical.  Judge 
Dixon  discharged  the  difficult  duties  of  a  trial  judge  to  the  entire 
satisfaction   of  that  bar.     Though  he  went  upon   the   bench   at 


Dixon  and  the  Campaign  of  1 860  1  27 

the  age  of  32  years,  and  after  an  experience  of  only  seven  years' 
practice,  and  that  not  varied  or  extensive,  to  read  what  has  been 
said  of  Judge  Dixon  as  a  circuit  judge, — of  the  commanding 
presence  and  quiet  dignity,  the  frankness  and  unaffected  sim- 
plicity, the  unvarying  courtesy  and  kindly  ways,  the  serene  and 
even  temper,  the  patient  attentiveness,  the  calm  deliberation,  the 
self-evident  fairness  and  singleness  and  integrity  of  purpose,  the 
equal  and  just  consideration,  the  open  and  unbiased  mind,  the 
strong  common  sense,  sound  judgment  and  wise  discretion,  the 
resolute,  orderly  and  efficient  method,  with  which  he  presided 
over  and  transacted  the  business  of  his  court,  all  which  are 
vouched  for  with  singular  unanimity  by  those  who  knew  and 
appeared  before  him  as  a  trial  judge — makes  most  of  us  in  the 
position  today  seem,  to  ourselves,  at  least,  small  and  weak  in- 
deed, and  our  shortcomings  all  but  appalling.  Notwithstanding 
the  great  satisfaction  which  his  service  gave,  Judge  Dixon  had 
declined  to  stand  for  re-election,  and  contemplated  resuming  his 
practice  at  Portage,  doubtless  because  of  the  small  salary  then 
attaching  to  the  office,  but  before  the  expiration  of  the  term 
for  which  he  was  appointed  the  death  of  Chief  Justice  Whiton 
left  vacant  the  chief  justiceship  of  the  supreme  court,  and  Gov- 
ernor Randall  appointed  Dixon  to  this  position." 

His  youth  and  comparative  inexperience  made  the  ap- 
pointment seem  almost  experimental,  but  he  soon  demon- 
strated his  eminent  fitness  for  the  great  position.  In  the 
before  mentioned  memorial  of  the  bar,  which  was  presented 
to  the  Supreme  Court  December  19,  1891,  after  Judge 
Dixon's  death,  it  was  most  truly  said  of  him : 

"He  was  happily  constituted  for  judicial  labor.  If  there  was 
aught  in  him  of  the  partisan  it  was  completely  subordinated  in 
the  judge.  Free  from  all  bias  or  prejudice,  his  mind  serenely 
sought  the  right  of  the  matter,  never  swayed,  even  unconsciously, 
by  thought  of  popularity  or  personal  consequences." 

He  was  a  man  of  commanding  stature,  fine  presence  and 
charming  personality,  a  learned  lawyer  gifted  with  a  mind 
of  comprehensive  grasp,  perfect  intellectual  honesty  and 
absolute  fearlessness.  Thus  Dixon  and  Paine,  two  great- 
men  who  were  both  destined  to  do  illustrious  labor  in  build- 


1  28  The  Story  of  a  Great  Court 

ing  up  the  fabric  of  Wisconsin  jurisprudence,  took  their 
seats  upon  the  bench  on  the  same  day,  one  by  appointment 
of  the  Governor  and  one  by  the  voice  of  the  people,  speaking 
under  the  stress  of  great  political  emotions. 

The  state  was  fortunate  in  the  choice  of  each.  The  times 
called  for  strong  and  constructive  minds.  Constitutional 
questions  involving  taxation  and  municipal  indebtedness 
were  at  hand,  as  well  as  the  great  question  of  the  relations 
of  the  state  and  the  federal  courts ;  the  important  questions 
arising  out  of  the  civil  war,  such  as  the  power  of  the  pres- 
ident to  suspend  the  writ  of  habeas  corpus,  the  validity  of 
the  draft  laws,  the  legal  tender  act,  the  bounty  laws  and 
the  law  authorizing  soldiers  to  vote  while  in  the  field  were 
soon  to  come. 

Both  the  ability  and  the  courage  of  the  new  Chief  Justice 
were  soon  to  be  severely  tested.  The  mandates  of  the  Su- 
preme Court  of  the  United  States  reversing  the  judgments 
of  dismissal  in  the  Booth  cases  were  presented  to  the  Court 
on  the  twenty-second  day  of  September,  1859,  an<^  motions 
made  that  they  be  filed.  If  the  Supreme  Court  of  the 
United  States  had  no  power  to  reverse  those  judgments  then 
the  mandates  had  no  more  business  on  the  files  of  the  Su- 
preme Court  of  Wisconsin  than  the  ukases  of  the  Czar  of 
Russia,  but  if  it  had  such  power  then  the  mandates  were 
entitled  to  be  filed  and  must  be  obeyed.  So  the  question 
whether  they  should  be  filed  or  not,  though  not  important 
so  far  as  tangible  results  were  concerned,  involved  the  whole 
question  of  jurisdiction  upon  which  the  two  courts  were 
at  issue.  Judge  Paine,  having  been  of  counsel  in  the  cases, 
could  not  sit  and  hence  the  duty  of  deciding  the  motions 
fell  on  Judge  Dixon  and  Judge  Cole.  Judge  Cole  retained 
his  former  view,  that  the  Federal  Court  had  no  power  to 


Dixon  and  the  Campaign  of  1 860  1 29 

review  the  judgments ;  hence,  even  if  Judge  Dixon  took  the 
opposite  view,  he  could  do  nothing,  because  there  would  be 
an  equal  division  of  the  judges  participating  and  in  this 
situation  no  affirmative  action  could  be  taken.  He  was 
powerless  to  accomplish  anything ;  he  might  without  serious 
impropriety  have  said  nothing  and  let  the  mandates  be  re- 
jected in  silence. 

Such,  however,  was  not  his  nature.  A  great  question  was 
presented  to  him  for  examination ;  the  clamor  of  the  par- 
tisan moved  him  not ;  neither  the  echoes  of  the  battle  which 
had  just  closed,  nor  the  premonitory  murmurs  of  the  contest 
which  was  soon  to  rage  about  him  disturbed  the  serenity  of 
his  judgment.  Duty  called  upon  him  to  investigate  the 
question  for  himself  and  record  his  conclusion  upon  it. 
This  he  proceeded  to  do  and  in  a  luminous  and  convincing 
opinion  demonstrated  both  upon  reason  and  authority  that 
the  United  States  Supreme  Court  had  jurisdiction  to  re- 
view and  reverse  judgments  of  the  state  courts  in  cases 
where  the  validity  of  a  law  of  the  United  States  was  at- 
tacked and  the  law  had  been  held  void.2  This  opinion  was 
filed  December  14,  1859,  and  was  immediately  published  in 
full. 

Upon  the  next  day  the  following  declaration  of  war  ap- 
peared in  the  Milwaukee  Free  Democrat : 

"The  opinion  simply  marks  its  author  as  belonging  to  the  con- 
solidation and  anti-state  rights  school  of  politicians  who,  con- 
sidering the  emphatic  expressions  of  the  people  of  the  state, 
has  no  right  on  the  bench  and  will  probably  remain  there  no 
longer  than  the  people  have  an  opportunity  to  express  them- 
selves in  April  next.  So  far  as  the  cases  are  concerned,  the 
opinion  has  no  practical  importance.  It  will  have  the  effect, 
however,  to   compromise  for  a   time   the   position   of  the  state, 


2  11  Wis.  *498. 
9 


1 30  The  Story  of  a  Great  Court 

so  clearly  and  emphatically  defined  and  declared  by  the  people, 
and  gives  us  our  work  in  a  measure  to  do  over  again.  In  this 
view  it  is  to  be  regretted." 

This  doubtless  expressed  the  view  of  the  radical  element 
which  comprised  the  great  majority  of  the  Republican  party. 
Their  disappointment  was  keen ;  just  as  they  had  succeeded 
in  reconstructing  the  bench  so  that  it  was  constituted  not 
only  of  Republicans,  but  of  state  rights  Republicans,  the 
fruits  of  their  labor  had  been  practically  taken  from  them 
by  death  and  executive  appointment.  There  were  indeed 
some  Republicans,  especially  among  the  abler  lawyers,  who 
saw  the  danger  of  the  state  rights  idea  and  recognized  that 
it  was  a  two  edged  sword  which  would  certainly  be  used 
against  the  party  in  case  it  obtained  national  power,  a  con- 
tingency which  the  torn  condition  of  the  Democracy  ren- 
dered more  probable  every  day.  Their  counsels,  however, 
fell  on  deaf  ears,  the  radicals  were  in  the  saddle  and  they 
demanded  a  straight  party  nomination  on  a  state  rights 
platform  and  the  defeat  of  Dixon. 

Judge  A.  D.  Smith  was  urged  by  many  as  the  logical  can- 
didate, which  indeed  he  was  if  the  question  of  state  rights 
was  to  be  the  sole  test,  but  the  names  of  A.  Scott  Sloan, 
David  Taylor,  William  P.  Lyon  and  others  were  brought 
forward  by  newspaper  communications.  There  was  a 
strong  undercurrent  of  feeling  against  a  party  nomination 
and  in  favor  of  supporting  Judge  Dixon  as  an  independent 
candidate,  but  it  made  little  headway ;  the  presidential  elec- 
tion was  approaching,  party  passions  were  running  high,  a 
victory  in  April  would  add  greatly  to  the  prestige  of  the 
party  and  improve  its  chances  in  November,  the  state  central 
committee  on  December  29,  1859,  published  a  call  for  a  state 
convention  to  be  held  at  Madison,  February  29,  i860,  to 
choose  delegates  to  the  national  convention,  also  presidential 


Dixon  and  the  Campaign  of  1 860  1  3 1 

electors  at  large  "and  to  adopt  such  action  as  may  be  advis- 
able in  view  of  the  approaching  election  of  Chief  Justice  of 
the  Supreme  Court  of  the  state."  The  challenge  neither 
surprised  nor  dismayed  Judge  Dixon,  indeed  it  may  be  said 
that  he  was  the  challenging  party  himself,  for  he  was  on 
principle  opposed  to  party  nominations  and  let  that  fact  be 
known  to  the  Republican  leaders.  Carl  Schurz,  who  had 
now  become  a  national  figure  and  was  actively  at  work 
spreading  the  doctrines  of  Republicanism  among  the  Ger- 
mans of  the  country,  but  still  keeping  track  of  the  political 
situation  in  Wisconsin,  on  February  n,  i860,  wrote  a  letter 
from  Philadelphia  to  Senator  Dooolittle,  in  the  course  of 

which  he  said: 

"I  had  several  letters  from  Wisconsin  lately;  the  approaching 
judicial  election  gives  our  friends  considerable  trouble.  Dixon 
will  not  accept  a  party  nomination  and  refuses  to  lend  himself 
to  factional  purposes  in  any  way.  But  I  understand  he  would 
allow  himself  to  be  called  out  as  an  independent  candidate  in 
case  A.  D.  Smith  should  run."  3 

The  convention  was  held  in  pursuance  of  the  call  and 
after  the  transaction  of  its  purely  political  business  I.  C. 
Sloan  of  Janesville  moved  to  proceed  to  the  nomination  of 
a  candidate  for  Chief  Justice.  A  warm  debate  followed, 
which  is  quite  fully  reported  in  the  Madison  State  Journal 
of  March  2nd.  Judge  Timothy  O.  Howe  and  his  brother, 
James  H.  Howe,  then  Attorney  General  of  the  state,  op- 
posed a  party  nomination  on  the  ground  that  the  nomination 
of  party  candidates  for  the  bench  was  inadvisable  and  that 
the  party  had  in  the  past  taken  that  position;  Mr.  Schurz 
was  present  and  spoke  warmly  in  favor  of  a  nomination, 
claiming  with  truth  that  Judge  Paine's  nomination  in  the 
previous  year,  though  not  made  by  a  convention,  was  to  all 

a  Wis.  Alumni  Magazine,  Vol.  9,  No.  4,  p.  137. 


1  32  The  Story  of  a  Great  Court 

intents  and  purposes  a  party  nomination.  The  motion  was 
carried  by  the  decisive  vote  of  137  to  84.  Upon  the  first 
ballot  A.  Scott  Sloan  of  Beaver  Dam  received  63  votes,  the 
balance  being  divided  among  many  candidates,  Judge  Dixon 
receiving  but  two  votes.  Upon  the  third  ballot  Sloan  re- 
ceived 158  votes  and  was  nominated. 

On  the  seventh  of  March  Judge  Dixon  was  put  in  the 
field  by  a  non-partisan  call  signed  by  several  thousand  elect- 
ors of  the  state,  including  many  of  the  ablest  members  of 
the  bar.  Practically  the  entire  bar  of  Madison  joined  in 
the  call,  among  the  names  being  E.  W.  Keyes,  D.  K.  Ten- 
ney,  F.  J.  Lamb,  W.  A.  P.  Morris,  H.  M.  Lewis,  Geo.  B. 
Smith,  S.  U.  Pinney,  B.  J.  Stevens  and  J.  C.  Gregory. 

There  was  no  move  for  a  Democratic  nomination.  The 
principle  of  non-partisanship  always  appeals  strongly  to  a 
minority  party  and  such  the  Democratic  party  now  was  for, 
in  the  fall  of  1859,  the  Republican  party  had  elected  a  full 
state  ticket. 

The  Madison  Patriot  (a  Democratic  paper)  of  March 
6th  said  in  course  of  a  long  editorial,  "Away  with  party 
judges,  away  with  party  decisions,  away  with  politics  on 
the  bench,"  and  this  doubtless  expressed  the  feeling  of  Dem- 
ocrats generally  at  this  time,  notwithstanding  the  fact  that 
with  a  regular  Republican  candidate  and  an  independent 
candidate,  recently  appointed  as  a  Republican,  in  the  field 
the  chances  of  a  straight  Democratic  nominee  who  could 
poll  the  vote  of  the  party  would  seem  to  have  been  very 
good. 

So  far  as  the  ability  and  personality  of  the  candidate  was 
concerned,  the  nomination  of  Judge  Sloan  was  an  eminently 
fit  one.  Both  he  and  his  brother  I.  C.  Sloan  of  Janesville 
were  recognized  as  among  the  ablest  lawyers  of  the  state. 


Dixon  and  the  Campaign  of  1 860  1 33 

He  was  nearly  forty  years  of  age  at  the  time  of  his  nom- 
ination and  had  come  to  the  state  from  New  York  in  1854, 
and  located  at  Beaver  Dam,  where  he  entered  on  the  prac- 
tice of  the  law  with  H.  W.  Lander.  He  was  elected  a  mem- 
ber of  the  Assembly  as  a  Republican  in  1857  and  was  also 
elected  mayor  of  Beaver  Dam  in  1857  and  1858.  He  was 
appointed  circuit  judge  of  the  third  circuit  in  1858  upon 
the  resignation  of  Judge  Larrabee  and  served  in  that  ca- 
pacity for  ten  months,  but  was  defeated  for  re-election  in 
1858  by  John  E.  Mann  by  a  very  small  majority.  He  was 
elected  to  Congress  in  i860  and  served  one  term.  He  was 
appointed  county  judge  of  Dodge  County  in  1868  and  held 
the  office  for  nearly  six  years.  In  1872  he  joined  the  in- 
dependent Republican  movement,  which  resulted  in  the 
nomination  of  Horace  Greeley  for  president  and  afterwards 
acted  with  the  Democratic  party.  He  was  elected  Attorney 
General  of  the  state  upon  the  Democratic  or  reform  ticket 
in  1873  and  re-elected  in  1875.  During  his  administration 
the  great  railroad  cases,  involving  the  question  of  the  power 
of  the  state  to  fix  fares  and  rates,  were  brought  and  decided 
favorably  to  the  state.4  In  188 1  he  was  elected  judge  of 
the  thirteenth  circuit  and  held  that  position  by  virtue  of 
successive  re-elections  until  his  death,  April  8,  1895. 

As  circuit  judge  he  commanded  the  respect  and  love  of 
both  bar  and  people.  In  the  course  of  an  eloquent  tribute 
to  his  memory  before  the  Supreme  Court  by  Samuel  S. 
Barney,  Esq.,  September  2,  1895,  the  speaker  gave  him  the 
following  just  praise:5 

"I  speak  the  plain  truth  as  I  believe  it  when  I  say  that  but 
few  men  ever  sat  upon  the  bench  better  qualified  in  every  way 
to  discharge  its  important  and  solemn  duties  than  he.     A  great 


4  35  Wis.  425. 

5  90  Wis.  p.  xlvii. 


34  The  Story  of  a  Great  Court 


lawyer,  in  the  sense  of  a  ready  and  technical  knowledge  of  all 
the  rules  of  law  and  practice,  he  perhaps  was  not;  but  in  the 
sense  of  a  thorough  and  almost  intuitive  knowledge  of  all  the 
great  principles  which  are  the  foundation  of  our  system  of  law 
and  equity,  he  was  a  great  lawyer.  He  never  spent  the  years 
that  some  jurists  have  in  close  study  of  cases  and  the  text-books 
of  the  law,  but  he  had  spent  a  long  life  in  the  careful  and 
thoughtful  conideration  of  good  books  of  all  kinds  and  of  men, 
and  thereby  acquired  a  wider  and  safer  knowledge  of  the  prin- 
ciplt  s  of  our  jurisprudence.  For  the  technicalities  of  the  law 
he  had  but  little  sympathy  or  consideration;  but  he  never  for 
a  moment  forgot  the  truth  of  the  great  principles  of  God's 
eternal  justice,  which  should  be  the  foundation  of  all  law. 

"Above  all,  he  brought  to  the  discharge  of  his  duties  a  great, 
good  and  honest  heart,  a  moral  perception  which  enabled  him 
in  every  case  to  see  the  right,  and  the  gift  of  a  lofty,  moral 
courage,  which  prompted  him  in  all  cases  to  do  the-  right  as 
he  saw  it,  regardless  of  criticism  or  consequences.  This  was 
the  quality  which  was  the  crowning  glory  of  Judge  Sloan's  life. 
He  may  at  times  have  been  mistaken  in  the  law,  he  may  also 
sometimes  have  failed,  from  the  facts  presented  to  him,  in  ar- 
riving at  a  just  conclusion,  in  the  judgment  rendered  by  him, 
but  every  decision  which  he  ever  made,  either  upon  a  question 
of  law  or  fact,  was  the  unprejudiced  conclusion  of  a  good  head 
and  an  honest  heart." 

Though  the  radicals  in  the  Republican  party  had  thus 
succeeded  in  forcing  a  party  nomination,  they  had  not  suc- 
ceeded in  securing  the  adoption  of  a  platform  nor  did  any 
one  know  certainly  what  Judge  Sloan's  position  was  on  the 
question  of  state  rights ;  and  as  this  was,  to  them,  the  su- 
preme test  of  fitness  for  the  bench  there  was  considerable 
dissatisfaction  among  them  with  the  result  of  the  conven- 
tion. Loud  demands  were  at  once  made  that  Judge  Sloan 
define  his  position  as  to  the  state  rights  doctrine ;  the  Free 
Democrat  of  Milwaukee  declined  to  put  up  his  name  at 
the  head  of  its  columns  and  on  March  8th  called  on  him 
to  state  his  position  and  threatened  to  bolt  the  nomination 


Dixon  and  the  Campaign  of  1860  135 

and  put  up  another  candidate  if  he  did  not  make  a  satis- 
factory statement. 

Thus  the  situation  became  acute,  if  not  alarming.  Judge 
Sloan's  sense  of  judicial  propriety  undoubtedly  told  him  that 
a  candidate  for  the  bench  could  not  properly  give  pledges 
in  advance  as  to  his  action  upon  a  question  which  might  be 
presented  to  him  for  decision  after  his  election,  but  in  re- 
sponse to  the  entreaties  of  his  friends  he  finally  adopted  a 
doubtful  expedient  for  making  his  views  known  by  way  of 
a  professedly  private  letter  to  his  brother,  I.  C.  Sloan.  This 
letter  was  addressed  "Dear  Brother"  and  was  published  in 
the  Janesville  Gazette  of  March  14th.  In  it,  after  noticing 
the  demand  of  the  Free  Democrat  for  a  statement  of  his 

views,  he  said : 

"You,  of  course,  know  that  I  agree  with  Judge  Smith  and  not 
with  Judge  Dixon;  you  also  know  that  I  would  not  have  ac- 
cepted the  nomination  otherwise;  Judge  Dixon  was  dropped 
mainly  because  of  his  unsoundness  on  that  question.  It  would 
be  bad  faith  in  me  to  take  the  nomination  unless  I  agreed  fully 
with  the  Supreme  Court  in  the  Booth  and  Rycraft  cases,  know- 
ing as  I  do  that  a  large  majority  of  the  Republicans  of  Wisconsin 
regard  the  question  as  a  vital  one  and  intended  to  nominate  a 
candidate  who  would  represent  the  views  of  that  majority.  But 
I  cannot  feel  that  I  ought  to  make  any  avowal  of  my  opinions 
on  that  or  any  other  question  and  shall  for  the  present  decline 
to  do  so.  A  little  reflection  will  convince  all  reasonable  men 
of  the  justice  and  propriety  of  this  course  and  I  trust  you  will 
agree  with  me." 

This  roundabout  method  of  making  his  position  known 
upon  the  burning  question  of  the  hour,  while  protesting  that 
he  could  not  properly  do  so  was  satisfactory  to  the  radicals 
and  the  Free  Democrat  immediately  gave  Judge  Sloan  its 
active  support.  Naturally  enough  the  letter  excited  laughter 
among  Dixon's  supporters  and  became  derisively  known  in 
the  campaign  as  the  "dear  brother"  letter.     Whether  it  was 


1  36  The  Story  of  a  Great  Court 

useful  or  not  in  Judge  Sloan's  canvas  may  well  be  doubted : 
it  removed  the  possibility  of  a  third  candidate,  but  it  doubt- 
K  ss  alienated  many  of  the  soberminded  Republicans  who 
were  at  first  inclined  to  follow  the  party  nomination,  but 
could  not  approve  this  palpable  bid  for  votes  by  a  candidate 
for  the  highest  judicial  office  in  the  state.  The  campaign 
was  spirited,  especially  in  the  newspapers.  Most  of  the 
Republican  papers  supported  Judge  Sloan,  but  there  were 
some  which  openly  advocated  Judge  Dixon's  election  and 
among  these  were  the  Milwaukee  Sentinel  and  the  Wiscon- 
sin State  Journal. 

About  March  20th  Marshall  M.  Strong  of  Racine  pub- 
lished in  the  Racine  Journal  a  very  able  plea  for  the  re- 
election of  Judge  Dixon  and  for  independence  of  the  ju- 
diciary. 

Ex- Justice  Abram  D.  Smith  took  an  active  part  in  the 
campaign  and  made  an  exhaustive  speech  in  support  of  the 
state  rights  position  and  the  Booth  decisions,  which  was 
ably  answered  by  Timothy  O.  Howe.  It  was  apparent  to 
all  that  notwithstanding  Paine's  brilliant  victory  on  this 
issue  in  1859  the  question  whether  belief  in  the  extreme  state 
rights  theory  was  to  be  the  test  of  Republicanism  in  Wis- 
consin was  still  an  open  one.  The  Republican  papers  urged 
all  Republicans  to  stand  by  the  party,  especially  in  view  of 
the  adverse  effect  of  a  party  defeat  upon  the  approaching 
presidential  contest  in  the  fall ;  the  story  was  also  circulated 
that  Governor  Randall  had  been  deceived  when  he  had 
made  Dixon's  appointment ;  that  he  had  inquired  of  Dixon's 
friends  before  the  appointment  as  to  his  position  on  the 
state  rights'  question  and  had  been  answered  by  them  that 
Dixon  was  all  right  on  the  question;  this,  however,  was 
vigorously   denied  by  Dixon's   friends. 


Dixon  and  the  Campaign  of  1 860  1  37 

Another  question  on  which  strong  feelings  were  begin- 
ning to  be  held  by  the  people  was  injected  into  the  campaign, 
although  it  could  hardly  be  called  an  issue,  because  the 
position  of  neither  candidate  upon  it  was  certainly  known. 
This  was  the  so-called  "farm  mortgage"  question  and  it 
arose  as  an  aftermath  of  the  railroad  building  epidemic  of 
the  early  fifties  and  the  business  depression  following  the 
panic  of   1857. 

The  influx  of  settlers  during  the  years  of  prosperity  and 
inflation  prior  to  the  panic  was  enormous.  They  arrived  at 
the  lake  ports  in  whole  ship  loads;  and  by  wagon  and  on 
foot  went  westward  and  spread  over  the  vast  and  fertile 
prairies  of  southern  Wisconsin  and  northern  Illinois,  which 
were  only  waiting  for  the  plough  and  the  sickle  to  break 
forth  into  abundant  harvests.  This  region  became  almost 
by  magic  the  granary  of  the  nation  and  in  the  fall  the  high- 
ways became  filled  with  farmers'  wagons  drawing  the  grain 
for  scores  and  even  hundreds  of  miles  to  the  ports  of  Lake 
Michigan  for  shipment. 

To  meet  these  new  conditions  railroads  seemed  to  be  an 
absolute  essential  and  in  Milwaukee  and  Racine  and  other 
lake  cities  companies  were  organized  to  construct  railroads 
to  the  interior  and  a  race  of  diligence  began  to  reach  and 
tap  the  area  of  the  great  grain  fields.  Milwaukee  sent  out 
two  lines,  Racine  one,  Kenosha  one  and  still  others  were 
projected. 

High  finance  was  known  even  then,  and  the  companies 
sent  out  agents  with  glowing  prospectuses  to  obtain  sub- 
scriptions to  the  stock  of  the  new  companies  by  the  towns, 
villages  and  cities  on  the  proposed  line  to  be  paid  for  by 
municipal  bonds.  So  anxious  were  communities  to  obtain 
the  benefit  of  the  railroad  lines  that  they  frequently  bid 


1 38  The  Story  of  a  Great  Court 

against  each  other  and  saddled  themselves  with  a  load  of 
indebtedness  which  blighted  their  future  for  many  years. 
Nor  did  the  agents  confine  their  efforts  to  municipalities, 
but  many  were  sent  to  the  prosperous  farmers  in  the  vicinity 
of  the  proposed  lines  and  these  painted  the  same  glowing 
pictures  of  the  wealth  which  the  railroads  would  bring  and 
urged  the  farmers  to  take  stock  in  the  enterprises  and  give 
mortgages  upon  their  farms  in  payment. 

It  was  a  time  of  optimism  and  prosperity ;  croakers  were 
the  exception.  Few  doubted  that  the  railroad  stock  would 
pay  dividends  from  the  outset  and  become  worth  more  than 
dollar  for  dollar  in  a  short  time.  It  was  regarded  as  certain 
that  the  coming  of  the  railroad  would  greatly  enhance  the 
value  of  farm  lands.  Thus  many  farmers  were  induced  to 
subscribe  for  stock  and  give  their  negotiable  notes  secured 
by  mortgages  on  their  lands  to  pay  for  it.  As  matter  of 
course  the  railroad  companies  disposed  of  the  notes  and 
mortgages  by  sale  or  pledge  as  soon  as  they  received  them 
in  order  to  obtain  the  money  with  which  to  build  their  roads. 
Whether  the  purchasers  were  all  bona  fide  holders  without 
knowledge  of  the  glittering  promises  held  out  to  the  farmers 
may  be  doubtful,  but  it  was  impossible  to  prove  them  other- 
wise and  hence  they  became  for  all  practical  purposes  inno- 
cent holders  of  commercial  paper  transferred  in  due  course 
of  business  before  due. 

From  these  dreams  of  wealth  there  was  soon  a  rude 
awakening.  Some  of  the  projected  roads  were  never  built ; 
those  that  were  built  paid  no  dividends  on  their  stock;  the 
great  panic  of  1857  came  and  forced  them  all  to  the  wall, 
wiped  out  the  stock  and  left  in  the  hands  of  the  farmers 
only  the  lithographed  certificates.  The  expected  rise  in 
values  of  lands  did  not  come,  in  fact  in  many  localities  land 


Dixon  and  the  Campaign  of  1 860  1 39 

decreased  in  value  and  the  farmer  was  left  with  a  heavy 
incumbrance  on  his  farm  and  nothing  to  show  for  it. 

Cities  and  towns  repudiated  their  bonds  and  refused  to 
levy  taxes  to  pay  the  annual  interest ;  the  farmers  declined 
to  pay  the  interest  on  their  notes  and  in  many  cases  could 
not  do  so,  and  the  holders  began  to  commence  foreclosure 
proceedings  and  thus  ruin  stared  many  a  farmer  in  the  face. 
The  question  became  a  serious  one  in  the  southern  part  of 
the  state  and  the  legislature  was  appealed  to  for  aid. 

The  Supreme  Court  at  the  December  term  1850  had  de- 
cided 6  that  a  negotiable  note  secured  by  a  mortgage  trans- 
ferred to  a  bona  Me  holder  before  due,  carried  with  it  the 
mortgage  so  as  to  preclude  the  defense  of  fraud  or  any 
other  defense  which  would  have  been  good  as  against  the 
mortgagee  and  this  decision  had  been  reaffirmed  at  the 
December  term,  1852,7  and  at  the  June  term,  1859.8 

If  these  decisions  were  to  be  followed  (and  they  only 
stated  a  principle  universally  established)  the  farmers  had 
practically  no  defense.  Their  notes  had  been  duly  made 
and  were  in  the  hands  of  innocent  purchasers ;  they  were 
contracts  and  as  such  were  protected  by  the  constitutional 
provision  prohibiting  the  passage  of  any  law  impairing  the 
obligation  of  contracts.9 

Notwithstanding  the  fact  that  the  rights  of  the  note 
holders  had  thus  become  vested  the  legislature  was  not  un- 
willing to  pass  an  act  purporting  to  grant  relief  to  the 
farmers  whether  it  was  constitutional  or  not,  thus  throwing 
upon  the  courts  the  burden  and  the  odium  of  declaring  it 


e  Fisher  v.  Otis,  3  Pinney,  78. 

7  Martineau  v.  McCollum,  3  Pinney,  455. 

8  Croft  v.   Bunster,  9   Wis.   *503. 
0  Const.  Wis.  Art.  I.  Sec.  12. 


1  40  The  Story  of  a  Great  Court 

invalid.  By  chapter  49  of  the  laws  of  1858  it  was  declared 
in  substance  that  in  all  actions  brought  to  enforce  such 
notes  or  mortgages  the  defense  of  fraud  should  be  available 
as  well  against  the  assignee  as  against  the  original  holder 
and  that  no  assignee  of  such  a  note  or  mortgage  should  be 
permitted  to  claim  that  he  was  an  innocent  holder  without 
notice. 

In  1859  several  cases  had  been  decided  in  the  circuit 
courts  of  Dodge,  Rock  and  Racine  Counties  involving  the 
validity  of  such  mortgages  in  the  hands  of  innocent  pur- 
chasers, in  some  of  which  the  defense  of  fraudulent  repre- 
sentations had  been  interposed,  and  in  others  the  defense 
that  the  railroad  companies  had  no  power  to  receive  notes 
and  mortgages  in  payment  for  stock.10  In  these  cases  the 
decisions  had  been  favorable  to  the  mortgagors  and,  while 
the  law  of  1858  was  not  specifically  made  the  ground  of 
the  decisions,  still  it  was  inferentially  at  least  sustained  in 
at  least  one  of  the  cases.  These  cases  were  now  pending 
upon  appeal  in  the  Supreme  Court  and  thus  the  question  of 
the  validity  of  the  law,  so  far  as  it  concerned  past  contracts, 
was  soon  to  be  presented  to  the  Court. 

Public  sympathy  was  unquestionably  largely  with  the 
farmers  and  in  favor  of  the  law  and  in  order  to  conciliate 
this  interest  the  partisans  of  each  candidate  endeavored  to 
make  it  appear  that  their  candidate  was  favorable  to  the 
law  and  that  the  opposing  candidate  was  against  it.  It  was 
charged  that  Democratic  lawyers  had  sent  out  letters  assert- 
ing that  Judge  Dixon  favored  the  mortgagors  while,  on  the 
other  hand,  Republican  papers  claimed  that  Judge  Sloan 
was  unquestionably  favorable  to  the  validity  of  the  law. 


10  Clark  v.  Farrington,  11  Wis.  *306;   Blunt  v.  Walker,  11  Wis. 
*334;    Cornell  v.  Hichens,  11  Wis.  *353. 


Dixon  and  the  Campaign  of  1 860  1 4 1 

Upon  this  question  the  campaign  amounted  to  little  more 
than  firing  in  the  air  for,  as  before  stated,  the  position  of 
neither  candidate  was  definitely  known.  The  contest  was 
a  heated  one  and  the  vote  so  close  that  the  result  was  not 
known  for  about  two  weeks.  Both  sides  claimed  the  vic- 
tory, there  were  charges  of  irregularities  and  the  throwing 
out  of  votes,  but  when  the  official  canvas  was  finally  made 
on  May  4th  it  was  found  that  Judge  Dixon  had  won  by  a 
majority  of  less  than  400  votes  in  a  total  vote  of  over  116,- 
000.  After  election  the  Milwaukee  Sentinel  and  the  Wis- 
consin State  Journal,  both  of  which  papers  had  supported 
Judge  Dixon,  were  bitterly  denounced  as  traitors  to  the 
Republican  cause  by  the  Fox  Lake  Gazette  and  by  other  Re- 
publican papers. 

In  a  review  of  the  various  judicial  campaigns  of  the  state 
printed  in  the  Milwaukee  Sentinel  of  April  15,  1895,  Hon. 
E.  \V.  Keyes  of  Madison,  who  participated  actively  in  the 
campaign  in  favor  of  Judge  Dixon,  says : 

"A  bitter  feeling  was  stirred  up  in  the  ranks  of  the  party  in 
the  state  and  those  who  supported  Judge  Dixon  *  *  *  were 
criticized,  condemned  and  stigmatized  as  bolters  and  threatened 
with  political  vengeance.  *  *  *  Republicans  were  berated 
for  standing  firm  for  the  principle  of  a  non-partisan  judiciary 
and  for  supporting  for  election  the  incumbent  of  the  office  be 
he  Republican  or  Democrat.  The  result  of  this  election  was 
a  vindication  and  approval  of  Judge  Dixon  for  his  boldness  and 
courage  in  adhering  to  his  convictions  of  duty  against  what  ap- 
peared to  be  at  that  time  a  popular  clamor  in  this  state — the 
dogma  of  state  rights — which  incited  the  rebellion  and  which 
soon  thereafter  was  repudiated  here,  and  by  the  nation;  blotted 
out  by  the  arbitrament  of  war,  it  is  hoped  forever.  *  *  * 
I  have  voted  for  every  judge  of  the  Supreme  Court  since  the 
days  of  Whiton  and  including  him.  I  was  active  in  behalf  of 
Chief  Justice  Dixon  in  that  most  extraordinary  judicial  campaign 
of  1860.  At  that  time  the  hotheads  of  our  party  classed  me  and 
others   like   me   as   bolters,   to   be   punished   galore.     In   looking 


1 42  The  Story  of  a  Great  Court 

back  I  can   recall  no  political  act  of  my  life  that  meets  more 
heartily  the  approval   of  my  judgment  and  conscience." 

Air.  Keyes  had  ample  reason  to  be  proud  of  his  position  in 
that  election  and  so  had  the  Republican  lawyers  of  the  state, 
the  great  majority  of  whom  supported  Judge  Dixon  in  that 
memorable  campaign.  It  is  not  too  much  to  say  that  by 
their  action  at  this  critical  time,  they  not  only  gave  the  death 
blow  to  the  heresy  of  state  rights  which  had  for  six  years 
dominated  the  party  and  dictated  its  candidates,  but  they 
also  did  much  to  establish  the  principle  of  non-partisanship 
in  judicial  elections  in  the  first  great  contest  where  it  was 
squarely  and  fairly  raised,  a  principle  which  was  destined 
to  become  paramount  in  the  state  and  lift  the  Supreme 
Bench  above  the  plane  of  party  politics. 

Although  Judge  Sloan  would  unquestionably  have  made  a 
creditable  Chief  Justice,  it  must  always  be  a  cause  for  con- 
gratulation that  at  this  crucial  period  in  the  state's  history, 
when  great  questions  were  impending  and  our  jurisprudence 
was  in  its  formative  state,  a  superlatively  great  lawyer  and 
judge  like  Luther  S.  Dixon  should  have  been  placed  at  the 
head  of  its  highest  court.  There  he  was  to  remain  for 
fourteen  years,  growing  in  strength  as  the  years  went  by  and 
doing  invaluable  service  in  placing  the  Supreme  Bench  of 
Wisconsin  in  the  very  first  rank  of  the  state  judiciaries. 


Dixon  and  Paine  1 43 


CHAPTER  XIII 

DIXON   AND   PAINE 

The  Bench  was  now  made  up  of  two  men  elected  because 
they  were  Republicans  (though  not  nominated  by  party  con- 
ventions), viz. :  Paine  and  Cole,  and  one  man  originally  ap- 
pointed as  a  Republican  but  elected  as  an  independent, 
Dixon.  Thus  it  was  to  remain  for  a  little  more  than  ten 
years,  with  the  exception  of  the  period  from  November  15, 
1864,  until  September  10,  1867,  when  owing  to  Judge  Paine's 
resignation  on  the  former  date,  Jason  Downer  of  Milwaukee 
occupied  his  seat. 

All  of  these  men  were  well  fitted  for  the  task  and  may 
be  said  to  have  admirably  supplemented  each  other.  Dixon 
and  Paine  were  men  of  great  intellectual  grasp,  of  vigorous 
and  constructive  intellect,  and  great  lucidity  of  expression. 
Cole  possessed  perhaps  less  of  originality  and  genius,  but 
his  mind  was  clear  and  logical,  his  industry  tireless,  his 
judgment  conservative  and  safe,  and  his  power  of  expression 
admirable.  When  Dixon  and  Paine  locked  horns,  as  they 
frequently  did,  Judge  Cole's  opinion  was  necessarily  con- 
trolling and  thus  it  was  that  upon  him  fell  the  burden  of 
giving  the  casting  vote  in  many  important  cases. 

Of  the  personal  and  mental  qualities  of  Dixon  and  Paine 
much  has  been  written  by  their  friends  from  the  vantage 
ground  of  intimate  personal  acquaintance.  As  the  writer 
had  not  this  advantage,  it  seems  better  to  insert  here  some 
excerpts  from  the  appreciative  notices  thus  already  made 
than  to  attempt  to  write  anything  new. 


1 44  The  Story  of  a  Great  Court 

In  the  course  of  the  memorial  of  the  bar  before  referred 
to1  (presumably  written  by  General  Edwin  E.  Bryant)  it 
is  said  of  Judge  Dixon : 

"He  came  to  the  bench  at  an  important  and  critical  time  in  the 
history  of  the  state  and  nation.  Questions  involved  in  the  con- 
tentions of  political  parties  must  be  decided  and  the  judgments 
of  courts  could  but  provoke  fierce  criticism.  Questions  were 
pending  which  directly  affected  the  interests  of  large  classes  of 
citizens,  arising  out  of  the  early  efforts  in  railway  development 
and  the  involvement  in  that  behalf  of  public  spirited  men.  For- 
tunes and  even  homes  were  imperiled.  Decisions  were  demanded 
favorable  to  those  in  jeopardy  and  judges  were  threatened  with 
the  displeasure  of  the  masses  if  decisions  gave  disappointment. 
The  then  recent  adoption  of  the  Code  had  displaced  the  ancient, 
familiar  practice,  and  thrown  much  labor  on  the  Court  in  settling 
the  new  procedure.  New  and  important  questions  sprang  up 
in  the  period  of  rapid  development  during  and  following  the 
war,  and  the  rapid  growth  of  the  state  largely  increased  the 
labors  of  the  Court.  Chief  Justice  Dixon  and  his  illustrious  as- 
sociates in  that  formative  period  worked  with  noble  diligence 
for  the  welfare  of  the  state.  *  *  *  The  work  of  Chief  Justice 
Dixon  and  his  eminent  colaborers  on  the  bench,  it  may  truly,  and 
we  hope  not  inappropriately,  be  said,  placed  our  Supreme  Court 
well  forward  among  the  strong,  able  tribunals  of  the  country. 
His  decisions,  embraced  in  twenty-six  volumes  of  our  Court  re- 
ports, constitute  a  record  imperishable,  and  his  ennobling  in- 
fluence upon  the  body  of  our  law  will  be  felt  and  acknowledged, 
as  it  now  is,  in  the  long  future. 

"In  private  life  stainless,  in  the  domestic  relations  and  those 
of  the  neighbor  and  citizen  irreproachable,  he  lived  among  us. 
In  social  intercourse,  when  professional  toil  could  for  a  brief 
space  be  laid  aside,  it  was  a  pleasure  to  meet  him.  Of  com- 
manding presence,  tall  but  well  formed,  with  a  natural  grace  of 
deportment  perfected  by  his  early  military  education,  he  bore 
nature's  stamp  of  superiority.  But  he  was  unostentatious,  sim- 
ple and  direct  in  manner  as  a  child,  cordial  and  generous;  and 
there  was  something  in  him  that  won  and  held  friends  and  gave 
him  a  wide  but  unsought  popularity.  He  had  the  sparkling  wit 
without   trace   of   bitterness,   the   buoyancy   of   spirit   and   keen 


i  81  Wis.  p.  XXXI. 


Dixon  and  Paine  145 

sense  of  humor,  so  often  observable  in  great  lawyers.  An  agree- 
able converser,  attent  and  sypatbetic  listener,  be  was  the  charm 
of  a  social  circle.  His  kindly  grace  put  all  at  their  ease  and  he 
could  be  interested  in  all  with  whom  he  came  in  contact.  His 
career  after  he  left  the  bench  was  in  keeping  with  his  noble 
work  upon  it.  He  remained  true  to  his  profession  though  polit- 
ical honors  were  within  his  reach.  Avoiding  all  notoriety, 
shunning  all  display,  he  modestly  went  about  his  work;  at  once 
assumed  high  rank  at  the  bar,  and  enjoyed  the  rewards  of  ex- 
tensive and  important  practice.  His  health  forced  him  some 
years  ago  to  seek  the  higher  altitudes  and  rarer  atmosphere  of 
the  western  mountains.  Thereby,  although  he  retained  bis 
residence  in  Milwaukee  and  considered  this  state  his  home,  the 
profession  here  lost  for  the  most  part  his  delightful  companion- 
ship and  his  powerful  aid.  It  was  almost  as  an  exile  that  he 
went  to  Colorado,  banished  by  the  rigor  of  our  climate.  He  went 
at  a  period  in  life  when  men  are  not  wont  to  form  new  attach- 
ments, and,  if  engrossed  in  care,  are  unlikely  to  attract  new 
friends.  Depressed  by  suffering,  for  his  asthmatic  ailment  de- 
prived him  of  the  blessedness  of  refreshing  sleep,  the  cheerful- 
ness which  was  one  of  the  charms  of  his  nature  might  well  be 
quenched.  But  he  entered  at  once  upon  an  extensive  practice, 
and  amid  the  strife  of  constant  legal  controversy  he  came  to 
be  loved  by  his  professional  brethren  there  no  less  than  here. 
In  the  resolutions  passed  at  a  large  meeting  of  the  bar  in  Den- 
ver, called  when  the  announcement  of  his  death  reached  them, 
they  express  in  words  of  tenderness  'their  reverent  respect  and 
heartfelt  affection.' 

"He  returned  to  his  family  in  Milwaukee,  a  few  weeks  since, 
after  a  professional  visit  to  Washington,  so  worn  out  by  the  long 
struggle  with  the  malady  which  finally  overbore  his  superb 
physical  constitution,  that  age  and  the  hand  of  death  seemed 
visibly  upon  him.  A  short  illness  brought  the  last  great  change, 
and  after  a  life  of  unsullied  honor,  faithful  service  in  the 
highest  field  of  usefulness,  with  a  lasting  fame  firmly  assured, 
life's  work  well  done,  his  body  sleeps  in  the  soil  of  the  state 
he  served  so  well,  near  the  scene  of  his  judicial  labors  and  by 
the  graves  of  his  children.  His  immortal  part,  with  God  who 
gave  and  imbued  it  with  such  love  of  justice,  such  high  intel- 
ligence, such  sweetness  and  charity,  now  as  we  devoutly  trust, 
sees  the  right,  not  in  the  crepuscular  dimness  of  human  im- 
perfections, but  in  the   clearness  of  eternal  day." 

10 


1 46  The  Story  of  a  Great  Court 

I'pon  the  same  occasion  the  Hon.  Gerry  W.  Hazleton  said 
of  him : 

"In  December,  1856,  I  met  him  for  the  first  time  at  his  office 
in  the  city  of  Portage.  There  was  at  that  time  no  railroad  com- 
munication with  the  place  and  I  had  made  the  journey  by  pri- 
vate conveyance  from  Columbus,  a  distance  of  thirty  miles,  for 
the  purpose  of  consulting  him  in  relation  to  professional  busi- 
ness. It  is  difficult  to  realize  the  years  which  have  elapsed 
since  then,  and  still  more  difficult  to  realize  the  magnitude  of 
events  which  crowd  and  illuminate  the  history  of  the  inter- 
vening period;  but  I  recall,  as  if  it  were  only  yesterday,  the 
cordial  greeting  which  was  extended  to  me  as  a  young  attorney, 
and  the  pleasant  impressions  which  I  carried  away,  impressions 
which  were  only  to  be  emphasized  by  the  intercourse  of  after 
years. 

"He  had  then  but  recently  returned  from  a  six  weeks'  absence 
in  Minnesota  and  still  further  west,  as  I  remember,  in  search  of 
a  location  which  might  please  him  better  than  Portage  for  the 
practice  of  his  profession.  His  observations  and  experiences  on 
the  journey  fortunately  led  him  to  the  conclusion  to  remain  in 
"Wisconsin,  and  he  had  returned  to  resume  his  practice  among 
the  friends  and  acquaintances  who  were  only  too  greatly  de- 
lighted to  welcome  him  back  to  his  former  home.  Here  he  con- 
tinued prosecuting  his  labors,  holding  the  leading  practice  in 
the  county  and,  so  far  as  his  friends  knew,  having  no  ambition 
for  judicial  honors.  It  was  while  thus  employed  that  he  re- 
ceived and  accepted  the  appointment  of  circuit  judge  for  the 
ninth  judicial  circuit,  to  take  the  place  made  vacant  by  the 
resignation  of  Judge  Collins — an  event  which  opened  up  to  him 
a  judicial  career  in  which  he  won  honorable  and  lasting  dis- 
tinction, and  upon  which  he  "shed  unquestioned  lustre,  not  so 
much  by  his  ample  learning  as  by  the  force  and  greatness  of 
his  character. 

"It  happened  to  me  to  be  a  resident  of  Columbia  County  when 
he  entered  upon  his  office  as  circuit  judge  and  to  have  been  a 
witness  to  his  capacity  for  judicial  service  at  the  very  outset, 
and  I  am  sure  I  shall  be  pardoned  for  referring  briefly  to  this 
portion  of  his  public  career.  Unquestionably  the  popularity  he 
at  once  acquired  as  circuit  judge  directed  attention  to  him  and 
led  to  his  promotion  to  the  Supreme  Bench.  The  lawyers  who 
had  occasion  to  appear  before  him   at  that  time  will  not  fail 


Dixon  and  Paine  147 

to  recall  his  easy  self-possessed  and  agreeable  bearing.  His 
bench  manners  were  simply  perfect.  He  combined  with  a 
natural  and  becoming  dignity  an  unaffected  simplicity,  a  frank- 
ness, an  even  serenity  of  temper,  an  unfailing  courtesy  which 
absolutely  disarmed  criticism.  It  is  said  of  the  eminent  Chief 
Justice  Gibson,  who  was  noted  for  his  deference  to  the  bar, 
that  he  boasted  in  one  of  his  merry  moods  that  he  had  reached 
at  last  the  object  of  his  highest  ambition,  which  was  to  keep 
his  eye  fixed  on  a  dull  speaker,  while  his  thoughts  were  em- 
ployed with  more  agreeable  objects.  Judge  Dixon  disclosed  the 
rare  faculty  at  the  circuit  which  he  brought  with  him  to  this 
Court — the  faculty  of  listening  to  a  dull  speaker  with  the  same 
apparent  consideration  he  would  accord  to  the  most  entertain- 
ing, and  if  with  less  interest  no  one  ever  knew  or  suspected  it. 
He  was  patient  and  helpful  particularly  with  the  younger  mem- 
bers of  the  bar,  while  at  the  same  time  prompt,  orderly  and 
efficient  in  advancing  business.  He  had  no  favorities,  no  prej- 
udices, no  idiosyncrasies.  His  charges— «at  that  time  oral — 
were  clear,  methodical  and  brief;  delivered  with  an  easy  and 
natural  grace  and  with  a  distinct  articulation  which  rendered 
it  a  pleasure  to  follow  him.  In  a  word,  he  was  the  ideal  circuit 
judge. 

"There  was  an  affluence  of  manhood  in  his  personality  which 
no  one  could  mistake.  This  he  carried  with  him  to  the  bench. 
It  constituted  the  basis  of  his  honorable  career.  It  permeated 
and  reflected  in  all  his  judicial  labors,  and  was  indeed  as  marked 
and  unmistakable  as  the  strong,  sturdy  common  sense  which 
guided  him  to  sound  and  just  conclusions.  He  was  pre-emin- 
ently one  of  those  of  whom  it  can  be  said  without  overpraise, 
'He  stood  four  squares  to  all  the  winds  that  blew.' 

"I  shall  not  be  misunderstood  when  I  say  that  he  was  entitled 
to  little  praise  for  being  honest  and  upright.  He  could  not  be 
otherwise.  His  integrity  was  so  wrought  into  the  fibre  of  his 
nature  and  was  so  essentially  a  part  of  himself,  that  he  could 
no  more  divest  himself  of  it  than  the  violet  can  divest  itself  of  its 
perfume.  It  did  not  spring  primarily  from  a  sense  of  the  duty 
which  judicial  station  laid  upon  him,  nor  from  his  high  appre- 
ciation of  the  sacred  trust  which  he  had  assumed,  but  from  in- 
nate rectitude  of  character  and  purpose — in  other  words  from 
the  essential  quality  of  his  organization.  Not  that  he  was  in- 
different to  this  sense  of  duty  or  unmindful  of  the  meaning  of 


1 48  The  Story  of  a  Great  Court 

his  trust,  but  that  he  was  happily  so  constituted  as  not  to  need 
such  stimulant. 

"Very  few  men  are  favored  with  greater  aptitude  for  judicial 
station.  He  had  the  judicial  temperament,  the  trained  habit  of 
investigation,  the  quick  perception  of  right  and  wrong,  the  nat- 
ural love  of  justice,  the  courage  of  his  convictions,  the  broad 
and  comprehensive  notion  of  equitable  principles,  which  ensure 
success  on  the  bench;  and  when  we  reflect  that  he  supplemented 
these  with  painstaking  study  and  research  we  can  readily  under- 
stand the  basis  of  his  eminence  as  a  jurist. 

"In  his  old  circuit  he  has  always  been  regarded  with  pride 
and  affection.  Particularly  is  this  true  of  Columbia  County,  in 
which  he  spent  the  early  years  of  his  professional  life.  He 
surrounded  himself  during  this  interesting  period  with  friends 
who  have  never  forgotten  his  genial  and  lovable  qualities.  In- 
deed his  circle  of  personal  friends  in  Portage  embraced  the 
entire  community." 

Judge  Charles  E.  Dyer,  in  the  course  of  an  eloquent  ad- 
dress on  the  same  occasion,  said : 

"His  judgments  are  among  the  jewels  of  our  jurisprudence. 
Without  exception  they  bear  the  stamp  of  his  penetrating  and 
vigorous  mind.  None  fails  in  that  lucidity  of  statement, 
strength  of  diction  and  cogency  of  argument  which  were  his 
happy  gifts.  If  his  intellect  was  not  what  may  be  called  bril- 
liant, it  was  comprehensive  and  powerful.  If  he  was  sometimes 
wanting  in  that  mental  alertness  and  dexterity  essential  to 
emergencies  in  forensic  strife,  his  masterly  powers  of  delibera- 
tion and  discrimination  made  him  an  ideal  judge  and  a  wise  and 
safe  counsellor. 

"He  had  high  respect  for  sound  authority,  but  he  believed 
also,  as  his  opinions  show,  in  original  processes  of  reasoning. 
Some  men  have  the  faculty  in  the  highest  degree  of  stating  with 
precision  what  the  law  is.  Others  have  the  faculty  of  stating 
what  the  law  ought  to  be.  Dixon  knew  what  the  law  is,  and 
could  state  it  so  accurately  that  it  was  dangerous  to  controvert 
his  proposition.  If,  as  a  judge,  he  was  convinced  that  he  had 
committed  error,  no  pride  of  opinion  would  stand  in  the  way  of 
its  correction,  for  like  Lord  Hardwicke  he  would  think  it  'a  much 
greater  reproach  to  continue  in  error  than  to  retract  it'. 

"At  all  times  frank  and  courteous,  every  impulse  of  his  nature 
was  generous  and  noble;    his  heart  was  large,  his  society  con- 


Dixon  and  Paine  149 

genial,  his  salutation  hearty.  He  was  plain  and  unobtrusive, 
he  affected  nothing.  On  the  bench  and  at  the  bar  his  demeanor 
toward  his  professional  brethren  was  always  that  of  kind  and 
cordial  recognition.  I  recall  as  a  pleasant  memory  my  first  case 
in  this  court  more  than  thirty  years  ago,  when  Mr.  Justice 
Lyon  came  with  me  as  associate  counsel  and  as  my  personal 
friend,  for  I  found  that  the  young  lawyer  was  received  by  Chief 
Justice  Dixon  and  his  associates  with  the  same  consideration 
and  kindness  as  was  any  veteran  of  the  bar. 

"As  a  companion  Judge  Dixon  was  delightful.  Judge  Drum- 
mond,  who  also  sleeps  the  sleep  of  the  just  and  whose  name  I 
reverently  speak,  was  wont  to  say  that  it  was  always  a  pleasure 
to  meet  Dixon,  he  was  such  a  likable  man.  Genial  in  tempera- 
ment, cultured  in  literary  acquirements,  fond  of  anecdote,  and 
abounding  in  a  great  sense  of  humor,  he  possessed  most  hap- 
pily those  qualities  which  drive  away  dull  care  when  the  hours 
of  serious  occupation  are  past." 

There  probably  has  never  been  any  other  judge  upon  the 
Supreme  Bench  of  the  state  who  mixed  so  freely  in  a  social 
way  with  the  members  of  the  bar  as  Judge  Dixon.  Judge 
Dyer  truly  says  that  he  was  a  delightful  companion  and  that 
he  possessed  those  qualities  which  drive  dull  care  away  when 
serious  duties  were  past.  The  state  was  still  young  and 
manners  quite  unconventional ;  Dixon  loved  to  meet  his 
fellow  lawyers  in  familiar  conversation  and  such  meetings 
were  not  seldom  held  around  the  small  table  of  the  restaurant 
or  bar  room,  where  jest  and  anecdote  went  around  as  well 
as  the  convivial  glass.  To  tell  the  plain  truth  his  convivial- 
ity sometimes  went  entirely  too  far  as  is  evidenced  by  a 
number  of  stories  which  formerly  floated  about  legal  circles 
in  his  old  circuit.  As  illustrative  of  their  character  the  fol- 
lowing which  is  told  of  him  while  still  living  at  Portage  will 
suffice.  One  evening  in  winter  when  a  snowstorm  was 
raging  Dixon  spent  the  evening  down  town  with  friends 
over  cards,  and  the  bottle  went  merrily  around ;  when  he 
came  to  go  home  it  was  suggested  that  there  were  no  street 


1 50  The  Story  of  a  Great  Court 

lights  and  it  was  so  dark  and  stormy  that  he  needed  a  lantern 
and  so  his  host  provided  one  for  him.  He  made  his  way 
slowly  and  laboriously  to  his  home  and  left  the  lantern  in 
the  front  hall.  In  the  morning  Mrs.  Dixon  remarked  it  and 
asked  whose  it  was  and  how  it  came  there  and  the  Judge 
dramatically  told  her  of  the  terrible  storm  and  the  inky 
darkness  of  the  night  and  of  the  kindness  of  his  friend  who 
loaned  him  the  lantern  without  whose  kindly  light  he  could 
hardly  have  got  home.  When  he  had  completed  this  affect- 
ing tribute  to  his  friend's  kindness  Airs.  Dixon  observed, 
"Well  Luther,  the  next  time  you  borrow  a  lantern  to  light 
your  way  home  you  had  better  see  to  it  that  it  has  a  wick 
and  some  oil  in  it." 

Among  his  friends  he  was  familiarly  known  as  "Dick", 
but,  notwithstanding  this  freedom  of  approach  and  uncon- 
ventionally of  manner,  no  man  ever  suspected  or  suggested 
that  he  had  friends  to  reward  or  that  his  treatment  of  ju- 
dicial questions  was  ever  in  the  slightest  degree  affected  by 
friendship. 

He  was  a  great  man,  strong  in  body  and  in  intellect,  pos- 
sessed of  little  patience  with  small  and  inconsequential  re- 
finements, either  of  manners  or  of  dress.  The  blood  in  his 
veins  was  rich  and  red ;  there  was,  as  Mr.  Hazleton  well 
says,  "an  affluence  of  manhood  in  his  personality"  which 
none  could  fail  to  see.  Easy  going  and  careless  of  trifling 
matters,  Court  would  frequently  convene  a  half  hour  or 
more  late  while  the  Chief  Justice  was  exchanging  anecdotes 
with  members  of  the  bar  who  had  come  to  argue  their  cases. 

Illustrating  this  irregularity  in  the  opening  of  Court, 
General  Winkler  of  Milwaukee  relates  the  following  story : 2 

"While  Judge  Dixon  was  chief  justice  the  court  was  guilty  of 
a  certain   laxity  of  practice.     It  had  no   very   definite  hour  of 


2  Vol.  8  Repts.  Wis.  Bar  Ass'n,  p.  39. 


Dixon  and  Paine  1  5 1 

meeting.  It  had  a  theoretical  hour,  of  course,  but  this  was  not 
strictly  adhered  to,  the  judges  frequently  not  coming  in  until 
half  an  hour  or  even  an  hour  after  the  appointed  time.  Under 
Judge  Ryan  as  chief  justice  this  practice  was  changed  and  the 
strict  hour  of  opening  at  ten  o'clock  every  morning  was  ob- 
served. One  morning  when  I  happened  to  be  there  the  first 
case  called  was  one  in  which  Judge  Dixon  was  interested.  Judge 
Dixon  was  not  present.  Word  was  sent  for  him  to  his  hotel  but 
he  was  not  found.  There  was  some  waiting  but  he  did  not  ap 
pear.  Finally  a  suggestion  was  made  to  substitute  some  other 
case  and  Mr.  John  W.  Cary  and  myself,  who  had  a  subsequent 
case  on  the  same  day's  docket,  took  up  the  argument  of  that 
in  place  of  Judge  Dixon's.  In  the  afternoon  at  the  opening  of 
court  Judge  Dixon  appeared  ready  to  argue  his  case.  Judge 
Ryan  looked  at  him  with  great  sternness  and  said,  'Judge  Dixon, 
the  court  lost  a  valuable  half  hour  this  morning  waiting  for  the 
late  chief  justice.' " 

General  Winkler  also  relates  the  following  story  of  the 
same  two  great  men  : 3 

"After  his  resignation  he  was,  as  we  all  know,  succeeded  by 
Chief  Justice  Ryan,  and  Judge  Dixon  and  Judge  Ryan  mutually 
seemed  to  take  great  pleasure  in  poking  a  little  fun  at  each 
other  whenever  they  could,  and  in  one  of  these  cases  relating 
to  the  Northwestern  road  that  Judge  Jenkins  has  alluded  to, 
there  arose  the  question  of  the  effect  of  a  certain  plat  of  property 
in  the  city  of  Milwaukee.  I  heard  it  argued  in  the  supreme 
court.  The  same  question  had  been  before  the  court  in  a  pre- 
vious case, — Emmons  v.  The  City  of  Milwaukee — and  argued 
by  Mr.  Ryan  in  behalf  of  the  city  of  Milwaukee,  he  being  then 
city  attorney.  The  decision  had  been  against  his  contention, 
Chief  Justice  Dixon  delivering  the  opinion.  Judge  Dixon  was 
now,  as  attorney  for  the  railway  company,  compelled  to  take  an 
opposite  position  as  to  the  proper  construction  of  this  plat.  The 
former  decision  stood  in  his  way  and  he  strenuously  argued 
against  its  correctness.  Chief  Justice  Ryan  interrupted  him, 
finally  saying:  'That  is  all  very  well,  Judge  Dixon.  It  is  the 
very  position  I  took  in  Emmons  v.  The  City  of  Milwaukee.  But 
you  overruled  me.  You  say  the  ruling  was  wrong.  In  this 
you   may   be    right.     But  the   great   difficulty   is   that   you   may 


8  Vol.  8  Repts.  Wis.  Bar  Ass'n,  p.  38. 


I  52  The  Story  of  a  Great  Court 

possibly  succeed  me  in  my  present  position,  as  I  have  succeeded 
you,  and  then,  I  am  afraid,  you  will  go  back  to  your  former 
error.'  " 

Hon.  G.  W.  Hazleton  relates  the  following  story,  which 
illustrates  his  ready  wit:4 

"Of  course  I  knew  him  very  well,  after  I  came  to  Columbia 
County,  and  while  he  was  practicing  at  Portage,  and  I  remember 
very  well  when  he  was  appointed  judge  of  the  circuit  court,  and 
having  quite  a  large  list  of  cases  to  be  tried,  he  requested  Judge 
Noggle  to  attend  the  term  and  try  the  cases  in  which  he  was 
interested.  At  the  close  of  the  term  we  had  a  banquet  at  the 
old  Vedder  Hotel,  the  old  yellow  building,  some  of  you  may  re- 
member, and  in  the  course  of  the  evening  when  the  time  came 
for  speech  making,  one  after  another  had  been  called,  and  finally 
a  certain  Mr.  X,  I  will  call  him,  who  was  quite  noted  in  the 
city  for  his  voice,  and  the  vigorous  use  of  it,  was  called  on  for 
some  remarks,  and  he  opened  by  saying:  'When  I  came  to  Portage 
this  country  was  a  howling  wilderness' — and  Judge  Dixon  sprang 
to  his  feet  with  this  query:  'I  would  like  to  inquire  of  the  gentle- 
man, whether  it  was  a  howling  wilderness  when  he  came  or 
after  he  came.' " 

Judge  Dyer  used  to  tell  this  story  of  Dixon.  After  leav- 
ing the  Supreme  bench  he  was  retained  by  one  of  the  great 
railway  companies  and  was  obliged  to  defend  a  series  of 
condemnation  actions  in  which  large  verdicts  were  rendered 
against  his  company.  One  day  Dyer  met  him  on  the  street 
in  Milwaukee  looking  exceedingly  glum.  Dyer  greeted  him 
as  usual  and  said  :  "Why  so  solemn  today  ?"  Dixon  told  him 
of  his  disastrous  experiences  with  condemnation  cases. 
After  his  tale  of  woe  was  told  Dyer  said  with  a  twinkle  in 
his  eye  (which  only  those  who  knew  that  delightful  char- 
acter can  appreciate),  "Judge  do  they  ever  quote  Driver  v. 
Western  Union  R.  R.  Co.  to  you  in  these  cases?"     "Yes 


4  Vol.  8,  Repts.  Wis.  Bar  Ass'n,  p.  37. 


Dixon  and  Paine  1  53 

they  do,"  said  Dixon,  "and  there  isn't  a  word  of  good  law  in 
it."  The  case  which  Dyer  referred  to  was  a  condemnation 
proceeding  in  which  he  was  defending  a  railroad  company 
(32  Wis.  Rep.  569)  and  in  which  Judge  Dixon  concurred  in 
an  opinion  compelling  the  company  to  pay  a  large  verdict 
on  what  always  seemed  to  Dyer  as  a  very  erroneous  prin- 
ciple. 

The  following  story  was  told  at  Racine  with  circumstan- 
tiality and  every  appearance  of  truth.  At  some  term  of 
Court  during  the  sixties  a  number  of  members  of  the  Racine 
bar  were  for  some  reason  late  in  reaching  Madison  to  argue 
their  cases  and  the  consequence  was  that  when  they  arrived 
in  the  evening  they  found  that  their  cases  had  all  been  called 
and  continued  or  dismissed  early  in  the  day.  They  agreed 
that  upon  the  opening  of  Court  in  the  morning  they  would 
all  appear  and  state  the  reason  of  the  delay  and  jointly  ask 
that  the  cases  might  be  reinstated  and  argued.  Major  Ira 
C.  Paine  (then  a  leading  lawyer  of  Racine  and  uncle  of 
Judge  Paine)  was  chosen  to  present  the  request.  The 
Major  was  somewhat  irascible  and  had,  when  excited,  a  high 
falsetto  note  in  his  voice.  After  he  closed  his  appeal  to  the 
Court  a  moment's  consultation  was  held  between  Chief  Jus- 
tice Dixon  and  his  colleagues  which  resulted  in  a  denial  of 
the  motion,  the  Chief  Justice  remarking  that  the  bar  must 
remember  that  nothing  was  more  uncertain  than  the  time 
when  cases  would  be  reached  in  this  Court.  At  this  Major 
Paine  jumped  to  his  feet  and  said  in  his  shrill  treble:  "Yes 
there  is,  Your  Honor;  yes  there  is;  it's  a  good  deal  more 
uncertain  how  the  cases  will  be  decided  after  they  are 
reached."  The  remark  disturbed  the  dignity  of  the  bench 
for  several  minutes. 


1  54  The  Story  of  a  Great  Court 

The  following  brief  summary  of  the  leading  events  in  the 
short  life  of  Judge  Paine  is  found  as  a  preface  to  the  mem- 
orials presented  to  the  Supreme  Court  after  his  death: 5 

"Byron  Paine,  late  an  associate  justice  of  the  supreme  court 
of  Wisconsin,  was  born  in  Painesville,  Ohio,  October  10,  1827. 
In  the  autumn  of  1847,  he  removed  to  Milwaukee  with  his  father, 
Gen.  James  H.  Paine,  with  whom  he  studied  law  in  that  city. 
He  was  admitted  to  the  bar  in  1849;  was  clerk  of  the  senate  of 
Wisconsin  in  1856;  was  elected  county  judge  of  Milwaukee 
county  in  1857,  and  held  that  office  until  the  first  of  June,  1859, 
wben  he  took  his  seat  as  one  of  the  associate  justices  of  the 
supreme  court  of  this  state,  to  which  position  he  had  been  chosen 
at  the  previous  spring  election,  for  the  full  term  of  six  years, 
to  fill  the  vacancy  created  by  the  expiration  of  the  term  of  the 
Hon.  Abram  D.  Smith.  On  the  10th  of  August,  1864,  for  the  pur- 
pose of  entering  the  military  service  of  the  United  States,  he 
tendered  his  resignation  of  his  judicial  office,  to  take  effect  on 
the  15th  of  November  following.  He  was  appointed  lieutenant- 
colonel  of  the  Forty-third  Regiment  of  Wisconsin  Volunteer  In- 
fantry, and  continued  in  the  service  until  May,  1865.  He  then 
resumed  the  practice  of  the  law  in  Milwaukee;  but  on  the  10th  of 
September,  1867,  he  returned  to  his  former  seat  on  the  supreme 
bench,  having  been  appointed  by  the  governor  upon  the  resigna- 
tion of  Mr.  Justice  Downer.  At  the  following  spring  election 
in  1868,  he  was  elected  for  the  residue  of  Judge  Downer's  term, 
which  would  expire  on  the  first  of  June,  1871.  He  appeared  in 
the  consultation  room  for  the  last  time  on  the  23rd  day  of  No- 
vember, 1870;  from  which  time  he  was  confined  at  his  own  home 
by  a  severe  attack  of  erysipelas,  until  his  death. 

"On  the  first  three  days  of  the  January  term  of  the  supreme 
court,  to  wit:  the  10th,  11th  and  12th  days  of  January,  1871,  the 
court  met  and  transacted  business  without  the  presence  of  Judge 
Paine.  On  the  third  day,  the  illness  of  the  absent  justice  con- 
tinuing to  be  of  an  alarming  character,  the  court  adjourned  until 
the  23rd  of  the  same  month.  On  the  evening  of  the  13th  Judge 
Paine  died." 

I  think  no  man  who  has  reached  the  Supreme  Bench  in 
this  state  has  been  better  loved  than  Paine.     He  reached 

5  27  Wis.  23. 


Dixon  and  Paine  1  55 

that  goal  by  call  of  the  people  before  he  was  thirty  years 
of  age ;  he  was  called  not  because  the  people  knew  him  to 
be  a  great  lawyer  (though  such  he  in  fact  was),  nor  because 
he  had  made  a  great  record  as  a  judge,  but  because  the  pub- 
lic heart  had  been  touched  and  thrilled  by  the  great  battle 
that  he  had  made  for  the  freedom  of  man  in  the  Booth  case. 
Few  popular  heroes  win  their  laurel  crowns  in  the  court 
room,  but  Judge  Paine  was  one  of  the  few. 

But  though  he  was  carried  to  the  bench  by  a  great  wave 
of  sentiment,  it  is  certain  that  no  mistake  was  made.  For 
once  at  least  sentiment  reached  the  same  conclusion  which 
calm  judgment  with  nice  measurement  of  abilities  would 
have  been  compelled  to  reach.  Byron  Paine  needed  no  aid 
from  mere  sentiment  or  claptrap  of  any  kind.  It  was  said 
of  him  by  Edward  G.  Ryan  on  the  occasion  of  the  presenta- 
tion of  the  memorials  before  referred  to : 6 

"He  was  emphatically  a  marked  man.  His  character  was  un- 
common. There  was  no  possibility  of  confounding  him  with  the 
crowd  of  respectable  mediocrity.  His  was  a  high  type  of  man- 
hood, physical,  mental  and  moral.  He  was  strong  in  all  the 
nobler  attributes  of  humanity;  singularly  free  from  all  its 
meaner  weaknesses;  he  was  essentially  a  gentleman,  not  by  force 
of  training,  but  by  the  intelligence  and  integrity  of  his  manhood. 
He  was  not  a  man  of  genius,  but  he  had  a  force  of  character,  a 
firmness  of  will,  a  strength  of  conviction,  which  made  his  high 
ability  of  more  value  to  the  world  than  genius  often  is." 

Speaking  of  the  Booth  case,  Mr.  Ryan  on  the  same  oc- 
casion said, 

"The  printed  brief  which  he  submitted  in  this  court  in  that 
case  was  the  ablest  argument  I  ever  met  against  the  constitu- 
tionality of  the  fugitive  slave  act.  It  is  a  professional  loss  that 
it  was  not  inserted  at  length  in  the  report  of  the  case.  It  es- 
tablished in  my  mind  his  great  learning  and  resources  as  a  cul- 
tivated lawyer." 

6  27  Wis.   34. 


1  56  The  Story  of  a  Great  Court 

Referring  to  Judge  Paine's  management  of  Booth's  de- 
fense on  the  trial  of  the  indictment  in  the  federal  court  Mr. 
Ryan  said, 

"I  shall  never  forget  his  closing  argument.  It  has  been  my 
lot  during  a  long  professional  life  to  encounter  many  able  advo- 
cates; but  I  never  listened  to  an  argument  before  a  jury  more 
perfect  for  the  case  than  that  was." 

This  is  high  but  well  merited  praise.  A  sketch  of  his 
life,  understood  to  be  from  the  pen  of  the  late  Chief  Justice 
Cole,  appears  with  the  memorials  presented  to  the  Supreme 
Court.7  There  can  be  no  closer  contact  between  man  and 
man  than  the  contact  of  the  consultation  room,  nor  can  there 
be  any  place  where  more  intimate  and  just  judgments  can  be 
formed  as  to  the  abilities  and  personal  qualities  of  another. 
From  these  considerations  Chief  Justice  Cole's  tribute  pos- 
sesses far  greater  significance  than  the  ordinary  eulogy,  and 
it  is  inserted  here  in  full : 

"Of  the  early  life  of  Judge  Paine  we  really  know  but  little. 
It  was  doubtless  not  unlike  that  of  the  youth  generally  of  his 
native  state  (Ohio)  who  happened  to  be  blessed,  as  he  was,  with 
most  kind  and  affectionate  parents  in  moderate  circumstances. 
It  may  therefore  be  assumed  that  there  were  no  incidents  in  his 
early  life  of  special  interest,  or  which  in  any  manner  presaged 
his  future  brilliant  career.  He  must  have  received  in  his  youth 
a  thorough  academical  education,  and  he  certainly  acquired  some 
knowledge  of  the  Latin  language.  But  he  never  made  preten- 
tions to  any  great  familiarity  with  Latin  authors,  and  in  the 
estimation  of  some,  rather  underrated  the  value  of  a  thorough 
classical  education.  He,  however,  became  a  very  fine  German 
scholar;  could  read  that  somewhat  difficult  language  with  great 
ease,  and  of  course  with  much  satisfaction;  and  at  one  time  had 
so  fully  mastered  the  language,  that  he  was  able  to  deliver  polit- 
ical speeches  in  German.  But  this  was  after  he  removed  with 
his  father's  family  to  Wisconsin,  and  when  he  began  to  take  an 
active  part  in  the  discussion  of  the  great  political  questions  of 
the  day.     Even  up  to  the  period  of  his  last  illness,  Judge  Paine 

■'  27  Wis.  58. 


Dixon  and  Paine  1 5  7 

seemed  to  delight  in  occasionally  turning  aside  from  the  severe 
writers  of  his  chosen  profession,  to  refresh  his  mind  with  the 
noble  productions  of  Lessing,  Schiller  and  Goethe.  He  read  law 
in  Milwaukee  in  the  office  of  his  father,  General  James  H. 
Paine,  and  was  admitted  to  the  bar  of  this  state  in  1849.  With- 
out any  particular  information  upon  this  point,  it  is  quite  safe 
to  say  that  he  must  have  been  a  hard  student,  reading  with  care 
and  discrimination  the  elementary  works  upon  the  different 
branches  of  equity  jurisprudence  and  the  common  law,  and  then 
becoming  well  grounded  in  the  leading  principles  of  legal  science. 
For  some  time  after  his  admission  to  the  bar,  not  being  pressed 
with  a  large  practice,  he  had  an  ample  opportunity  to  write  for 
the  public  press  upon  such  subjects  as  he  felt  a  peculiar  interest 
in,  and  this  opportunity  he  well  improved,  to  his  great  advantage 
in  after  life.  For  by  these  frequent  contributions  to  the  news- 
paper press,  and  the  popular  discussions  which  they  necessarily 
led  him  to  engage  in,  Judge  Paine  acquired  a  facility  of  com- 
position, a  readiness  to  express  his  ideas,  either  orally  or  in 
writing,  with  a  clearness  of  expression,  a  force  of  logic,  and  an 
eloquence  rarely  equalled,  and  never  excelled,  by  any  public  man 
of  the  state. 

"But  a  few  months  after  the  admission  of  Judge  Paine  to  the 
bar,  Congress  passed  the  fugitive  slave  law  of  1850.     This  enact- 
ment, so  cruel  and  inhuman  in  its  provisions,  as  many  good  peo- 
ple thought,  certainly  freighted  with  much  evil  and  mischief  in 
the  then  state  of  public  sentiment  in  regard  to  chattel  slavery, 
was  at  once  challenged  upon  constitutional  grounds  by  some  of 
the  ablest  and  best  lawyers  in  the  country.     An  event  soon  hap- 
pened in  this  state  which  brought  the  discussion  as  to  the  valid- 
ity of  the  law  to  a  practical  issue.     In  March,  1854,  an  alleged 
fugitive  slave,  by  the  name  of  Glover,  was  seized  by  the  United 
States  marshal  as  the  property  of  one  Garland,  of  Missouri,  un- 
der this  law.     Some  persons  rescued  Glover  from  the  custody  of 
the  marshal,  and  set  him  at  liberty.     Certain  parties,  supposed 
to    have    been    present,    aiding    and    assisting    in    the    escape    of 
Glover,  were  then  arrested  for  a  violation  of  its  provisions,  and 
committ'd  to  prison.     The  persons  thus  imprisoned  sued  out  a 
writ  of  habeas  corpus,  and  the  question  of  the  constitutionality 
of  the  law  was  finally  presented  to  the  supreme  court  for  de- 
cision.    Judge    Paine   made   the    leading   argument   against   the 
validity  of  the  law,  and  his  views  prevailed  with  the  court.     The 


1  58  The  Story  of  a  Great  Court 

argument  made  by  him  on  that  occasion  he  regarded  as  the 
greatest  intellectual  effort  of  his  life.  It  was  certainly  a  most 
masterly  discussion  of  the  question  involved,  and  established  his 
reputation  as  one  of  the  ablest  constitutional  lawyers  in  the 
country.  He  had  a  great  fondness  for  the  investigation  and 
study  of  constitutional  questions,  and  the  discussion  of  them 
afforded  a  fine  field  for  the  display  of  his  great  powers  of  reason 
and  logic.  He  was  sincerely  attached  to  the  Union  and  the 
constitution  of  the  United  States,  and  desired  to  see  them  main- 
tained in  their  original  purity  and  integrity.  His  view  of  the 
federal  government  was,  that  it  was  a  government  of  delegated 
powers;  that  it  was  supreme  within  the  scope  of  those  powers; 
but  that  it  could  not  rightfully  exercise  any  power  not  expressly 
granted  in  the  constitution,  or  which  was  not  incidental  and 
necessary  to  the  proper  execution  of  some  power  clearly  granted. 
The  preservation  of  the  complex  system  of  state  and  federal 
government  he  deemed  of  vital  importance  for  the  security  of 
liberty  and  personal  rights.  But  to  secure  the  blessings  of 
liberty,  and  to  perpetuate  the  Union,  it  was  essential  to  maintain 
the  reserved  powers  and  rights  of  the  states  in  all  their  in- 
tegrity. Hence,  he  was  always  ready  to  vindicate  the  rights  of 
the  states,  whenever  in  his  judgment  those  rights  were  usurped 
by  the  general  government.  But  his  affection  was  as  strong  and 
his  zeal  as  active  to  sustain  the  just  rights  and  powers  of  the 
one  as  the  other.  He  favored  no  new  glosses,  no  new  inter- 
pretations calculated  to  make  the  federal  constitution  a  different 
instrument  from  the  one  our  fathers  had  made,  construed  and 
adopted.  And  if  experience  had  shown  that  there  were  defects 
in  the  instrument,  then  the  wise  course  was  to  remedy  them  by 
proper  amendments,  and  not  by  doubtful  construction.  This,  in 
brief,  was  the  constitutional  doctrine  of  Judge  Paine.  He  had  an 
intense  hatred  of  slavery,  and  resisted  with  all  the  energy  of 
his  nature  its  insidious  encroachments,  whether  under  the  guise 
of  constitutional  power  or  in  its  more  open  violation  of  sacred 
rights  and  principles.  Therefore  to  overthrow  and  annul  the 
fugitive  slave  law  was  a  labor  in  which  his  head  and  heart 
worked  together  in  perfect  accord.  After  his  argument  just  re- 
ferred to,  he  continued  his  practice  at  the  bar  but  a  short  time. 
He  never  acquired  what  would  be  called  an  extensive  and  lucra- 
tive practice.  But  he  was  always  laborious  as  a  lawyer;  mas- 
tered  fully   the   law   and  facts   of   every   case   entrusted   to   his 


Dixon  and  Paine  1 59 

charge;  never  sought  to  succeed  on  any  mere  technicality,  but 
only  upon  the  strength  and  real  merits  of  his  cause;  was  clear 
and  strong  in  argument;  thoroughly  in  earnest  in  what  he  said; 
treating  his  opponent  fairly  and  ever  perfectly  honest  with  the 
court.  Such  was  his  sincerity  and  love  of  truth  that  no  one 
ever  heard  him  insist  upon  a  position  before  the  court  that  his 
better  judgment  admonished  him  was  unsound.  He  was,  in  a 
word,  a  high-minded,  conscientious,  thoroughly  upright  lawyer; 
proud  of  his  profession;  desiring  to  see  its  members  working 
together  for  the  improvement  of  legal  science,  cherishing  fra- 
ternal feeling  among  themselves,  and  ever  maintaining  a  high 
standard  of  morality  and  excellence. 

"In  1857,  Judge  Paine  was  elected  county  judge  of  Milwaukee 
County.  Under  the  circumstances,  this  was  a  great  popular 
tribute  to  his  qualifications  as  a  lawyer  and  his  worth  and  in- 
tegrity as  a  man.  The  Republican  party,  of  which  he  had  been 
from  its  organization  an  active  and  powerful  leader,  was  largely 
in  the  minority  in  the  county.  A  democratic  candidate  was  reg- 
ularly nominated  for  the  office  by  that  party.  The  office  was  an 
important  one.  In  addition  to  its  civil  jurisdiction  over  a  certain 
class  of  cases,  the  county  court  was  vested  with  probate  powers. 
It  is  the  peculiar  duty  of  that  court  to  settle  the  estates  of  de- 
ceased persons,  to  adjust  the  accounts  of  guardians,  to  guard  and 
protect  the  rights  and  interests  of  widows  and  orphans,  who  are 
frequently  unable  to  protect  themselves.  Such  was  the  public 
confidence  in  Judge  Paine,  that  the  electors  of  Milwaukee  county 
did  what  is  not  always  done  in  this  country — they  elected  the 
best  man  regardless  of  party.  They  fully  appreciated  how  es- 
sential it  was  to  have  a  wise  and  incorruptible  judge  in  that 
place,  and  they  put  him  there.  They  never  had  reason  to  regret 
their  choice.  Judge  Paine  held  the  office  of  county  judge  until 
he  was  elected  judge  of  the  supreme  court,  in  the  spring  of  1859. 
He  remained  on  the  bench  of  that  court  until  November,  1864, 
when  he  resigned  his  office  and  entered  the  volunteer  forces  of 
the  United  States,  raised  to  suppress  the  rebellion.  He  was  ap- 
pointed lieutenant-colonel  of  the  Forty-third  Wisconsin  Infantry. 
It  is  doubtful  whether  the  entire  loyal  states  furnished  another 
instance  of  a  judge  of  the  highest  state  court  resigning  his 
position  upon  the  bench  to  accept  such  an  appointment,  or  even 
any  appointment  in  the  army.  And  yet  this  was  so  in  accord 
with    the    disinterested   and    patriotic    spirit   which   marked    the 


60  The  Story  of  a  Great  Court 


conduct  of  Judge  Paine,  that  it  excited  no  surprise  and  scarcely 
a  remark  among  his  friends.  Some  of  them  well  knew  what  a 
trial  it  had  been  to  his  feelings  that  he  could  not  enter  the 
service  at  the  very  commencement  of  the  war.  But  controlling 
reasons  of  a  private  nature  forbade  his  doing  so.  He  had  no 
opportunity  to  distinguish  himself  in  this  service,  even  if  the 
acquisition  of  military  fame  and  distinction  had  been  the  in- 
ducement for  his  entering  the  army.  But  no  such  motive  oper- 
ated upon  his  mind.  He  went  into  the  army  solely  from  a  sense 
of  patriotic  duty,  and  to  aid  in  sustaining  the  Union  in  the  great 
crisis  of  its  history.  At  the  close  of  the  war  he  returned  to  his 
home  and  his  practice,  and  continued  to  labor  in  his  profession 
until  his  appointment  to  the  bench  of  the  supreme  court,  Sep- 
tember 10,  1867.  He  remained  upon  the  bench  of  that  court, 
discharging  faithfully  the  highly  responsible  duties  of  his  office, 
until  stricken  down  by  the  illness  which  caused  his  death. 

"The  question  as  to  Judge  Paine's  eminent  qualifications  and 
fitness  for  this  position  is  settled  finally — conclusively  put  at 
rest — by  the  published  decisions  of  the  supreme  court.  These 
will  abundantly  vindicate,  it  is  believed,  so  long  as  they  exist, 
his  reputation  and  character  as  an  able,  independent  and  in- 
corruptible judge.  Causes  of  great  difficulty,  magnitude  and  im- 
portance have  come  before  the  court  while  he  has  been  upon  the 
bench,  have  been  determined,  and  have  passed  into  judgment. 
The  record  is  therefore  made  up;  so  far  as  he  is  concerned,  it 
cannot  be  changed;  and  his  judicial  fame  and  merits  may  rest 
upon  it  as  it  is.  His  friends  should  be  willing,  as  they  doubtless 
are  willing,  to  let  his  published  opinions  decide  the  matter.  Do 
not  these  opinions  show  patient  and  careful  examination;  labor- 
ious research  and  investigation;  a  proper  deference  to  authority; 
just  discrimination  of  adjudged  cases;  a  clear  and  firm  grasp  of 
sound  principle?  Do  they  not  show  that  he  at  least  sought  to 
decide  causes  according  to  the  well  established  rules  and  prin- 
ciples of  law,  impartially,  justly,  without  regard  to  personal, 
party,  or  any  unworthy  consideration?  That  he  made  mistakes 
and  sometimes  fell  into  error,  is  no  more  than  saying  that  he 
had  the  infirmity  of  our  common  nature.  It  is  impossible  to 
get  a  just  idea  of  his  strength  and  ability  as  a  judge  from  any 
one  of  these  opinions.  Those  upon  the  true  limits  and  principles 
of  taxation,  and  upon  questions  of  constitutional  law,  seemed 
most  fully  to  call  forth  the  resources,  as  they  taxed  most  severely 


Dixon  and  Paine  161 

the  powers,  of  his  mind.  Many  of  his  decisions  might  be  cited 
as  fine  specimens  of  judicial  reasoning  and  clear  persuasive 
argument.  The  remark  was  sometimes  made,  that  he  was  too 
little  inclined  to  follow  in  the  beaten  path  of  the  law — to  stand 
super  antiquas  vias.  If  by  this  was  implied  that  he  had  not 
such  a  blind  reverence  for  authority  that  he  dare  not  question 
an  unsound  decision  which  had  the  support  of  a  great  name,  or 
any  number  of  them,  the  remark  was  undoubtedly  just.  He  cer- 
tainly had  but  little  idolatry  for  mere  precedents  as  such,  which 
violated  correct  principles.  His  mind  was  critical,  but  not  revo- 
lutionary. He  laid  no  violent  hand  upon  the  great  systems  of 
equity  and  common  law  jurisprudence  which  the  great  sages  of 
the  past  have  left  us.  But  he  realized  that  those  systems,  how- 
ever wise  and  excellent,  were  still  not  perfect.  They  will  bear 
improvement,  and  must  at  times  be  modified  to  adapt  them  to 
the  wants  of  a  highly  refined  society  and  a  new  condition  of 
things.  What  wise  jurist  thinks  otherwise?  He  also  had  a  just 
appreciation  of  the  responsibility  of  his  office.  He  knew  that  an 
independent,  pure  and  intelligent  judiciary  was  a  sheet-anchor 
of  our  institutions;  and,  as  far  as  he  could,  he  labored  to  render 
it  all  that,  in  this  state.  No  one  will  say  that  the  fountains  of 
justice  were  polluted  by  him. 

"From  his  first  appearance  in  public  affairs,  he  enjoyed  a 
large  measure  of  public  favor  and  confidence.  This  was  doubt- 
less due  to  the  liberality  of  his  principles  and  his  consistent 
course  of  action.  Having  capacity  sufficient  to  take  a  leading 
part  in  the  most  important  affairs,  he  never  sought  office.  His 
sympathies  were  large,  and  always  on  the  side  of  liberty,  human- 
ity and  progress.  He  gave  his  earliest  and  best  efforts  to  the 
cause  of  the  poor,  oppressed  slave.  His  whole  soul  revolted  at 
the  'horrid  fantasy  that  there  could  be  property  in  man.'  Every 
good  cause  in  him  had  a  friend.  With  the  Latin  poet  he  could 
say:  'Homo  sum;  humani  nihil  a  me  alienum  puto;'  'I  am  a 
man;  I  think  nothing  that  relates  to  man  foreign  to  my  feel- 
ings." 

"He  enjoyed  the  full  confidence  and  affection  of  his  associates 
upon  the  bench,  who  fully  appreciated  his  many  noble  qualities 
of  head  and  heart.  And  it  is  true,  to  use  the  language  of  a 
great  man,  when  speaking  of  another  almost  equally  distin- 
guished: 'Political  eminence  and  professional  fame  fade  away- 
and  die  with  all  things  earthly.     Nothing  of  character  is  really 

11 


1 62  The  Story  of  a  Great  Court 

permanent  but  virtue  and  personal  worth.'  (Mr.  "Webster's  re- 
marks on  the  death  of  Jeremiah  Mason,  vol.  2.)  Virtue  and 
personal  worth  Judge  Paine  indeed  possessed  in  a  high  degree, 
if  ever  man  did.  He  was  temperate,  truthful,  sincere,  continent. 
He  wronged  no  man.  He  outraged  no  rules  of  morality.  His 
palm  never  itched  for  unlawful  gain.  He  was  true  and  faithful 
to  his  friends.  He  was  true  and  faithful  to  all  public  trusts. 
He  would  not  have  done  a  base  act  for  any  place  or  any  profit. 
He  would  have  felt  a  stain  upon  his  reputation  more  keenly 
than  a  wound  upon  his  body.  Under  no  temptation,  under  no 
trial,  did  his  moral  feeling  lose  its  'sensibility  of  principle  and 
chastity  of  honor.'  He  was  of  rare  simplicity  of  character, 
large  hearted,  charitable  as  far  as  his  means  would  allow,  ever 
preferring  to  be  estimable  rather  than  seem  to  be  so. 

"He  read  much  outside  of  his  professional  studies.  He  had  an 
inquiring,  critical  mind.  His  apprehension  was  quick,  his  power 
of  acquisition  remarkable,  and  his  memory  very  tenacious.  He 
was  intellectually  honest;  not  afraid  to  read  what  might  be  said 
against  his  views,  and  ready  to  accept  the  truth  from  any  source. 
He  read  much  upon  theology,  and  reflected  more  upon  the  great 
problems  of  human  destiny.  These  queries  seemed  to  be  con- 
stantly hovering  in  his  thoughts:  Whence  did  we  come?  Whither 
do  we  go?  And  why  have  we  been  summoned  on  the  shores  of 
earthly  being?  That  he  solved  these  momentous  questions  to 
his  own  satisfaction,  even,  no  one  can  affirm.  But  he  had  de- 
cided convictions  upon  the  subject  of  religion.  He  brought  to 
the  examination  of  that  subject,  as  of  all  others,  an  honest,  in- 
dependent spirit.  It  was  impossible  for  him  to  accept  any  man's 
creed  unless  it  commended  itself  to  his  reason  and  moral  sense. 
Whatever  opinions  he  entertained  upon  religious  subjects,  he 
retained  to  the  last,  and  there  is  no  evidence  that  he  was  dis- 
satisfied with  them,  even  in  presence  of  death  itself. 

"He  had  favorite  authors  that  he  was  accustomed  to  resort 
to  at  all  times,  turning  them  in  his  hand  both  day  and  night. 
He  was  very  fond  of  the  dramas  of  Shakespeare,  the  poetry  of 
Milton  and  Byron;  he  greatly  admired  the  manner  and  style  of 
Webster's  great  efforts,  and  read  with  infinite  relish  Scott  and 
Thackeray.  He  placed  the  latter  author  far  above  Dickens  as 
a  writer  of  fiction.  Indeed  he  did  not  greatly  admire  Dickens, 
which  seemed  a  little  strange,  as  he  had  himself  a  great  deal 
of  humor  in  his  nature,  and  a  nice  sense  of  the  ridiculous. 


Dixon  and  Paine  1 63 

"He  was  blessed  by  nature  with  a  fine,  vigorous  constitution. 
He  was  nearly  six  feet  in  height,  and  well  proportioned.  His 
countenance  indicated  great  resolution  and  decision  of  character. 
He  was  very  fond  of  active  out-door  sports,  especially  hunting. 
He  was  so  full  of  vitality  and  life  that  no  one,  before  his  sick- 
ness, would  have  hesitated  to  predict  that  he  was  to  have 
'length  of  days  in  his  right  hand,  and  in  his  left  hand  riches 
and  honor."  When  a  man  full  of  years  and  full  of  honors  comes 
to  his  grave  'like  a  shock  of  corn  cometh  in  his  season,'  we 
readily  acquiesce  in  the  providence  which  removes  him  from 
earth.  It  is  with  a  somewhat  different  feeling  that  we  see  the 
strong  man  fall,  when  in  the  full  maturity  of  manhood,  while 
in  the  full  vigor  of  his  mental  and  physical  powers,  when  his 
fame  and  usefulness  are  widening,  and  his  life-work  but  partly 
done." 


64  The  Story  of  a  Great  Court 


CHAPTER  XIV 

THE  FARM   MORTGAGORS  AND  JUDGE  COLE'S  SECOND  CAMPAIGN 

The  year  i860  was  a  stirring  one  in  national  and  state 
politics.  The  old  Democratic  party  which  had  guided  the 
destinies  of  the  nation  for  the  greater  part  of  the  time  since 
the  days  of  Jefferson  had  been  rent  in  twain.  The  northern 
and  southern  wings  of  the  party  had  finally  separated  at 
Charleston  and  the  division  had  become  complete  by  the 
nominations  of  Breckenridge  and  Lane  by  the  southern  wing 
and  of  Douglas  and  Johnson  by  the  northern  wing.  The 
Republican  party,  flushed  with  local  successes  all  over  the 
north  and  imbued  with  all  the  enthusiasm  which  devotion 
to  a  great  moral  principle  incites,  placed  before  the  people 
as  its  candidate  for  President  the  great  rail  splitter  sprung 
from  the  loins  of  the  common  people  and  preferred  above 
the  polished  eastern  statesman  Seward.  It  was  a  time  of 
political  disintegration  and  turmoil. 

The  effects  of  the  panic  of  1857  had  not  yet  passed  away ; 
times  were  still  hard ;  there  was  no  national  currency,  state 
banks  were  still  failing,  and  a  man  who  received  a  bank  bill 
in  payment  for  a  debt  could  not  tell  whether  it  would  be 
good  on  the  morrow.  The  national  campaign  was  active 
and  acrimonious.  As  it  progressed  and  the  Democratic 
factional  fight  gave  promise  of  dividing  the  party  into  nearly 
equal  parts  and  thus  making  the  election  of  Lincoln  pos- 
sible, threats  of  secession  by  the  southern  wing  of  the  party 
became  louder  and  louder  and  these  threats  were  answered 
by  threats  of  force  on  the  part  of  the  north. 


Cole's  Second  Campaign  1 65 

Stirring  as  national  politics  were,  however,  in  the  summer 
of  i860  there  was  another' question  which  came  to  the  front 
in  the  southern  part  of  the  state  which  agitated  several 
thousand  of  the  farmers  in  that  region  more  than  the  ques- 
tion of  the  preservation  of  the  union  or  the  freedom  of  the 
slaves. 

Reference  has  been  made  in  a  preceding  chapter  to  the 
great  number  of  notes  and  mortgages  executed  by  farmers 
in  several  of  the  southern  counties  and  given  to  railroad 
companies  in  exchange  for  railroad  stock  during  the  years 
of  great  railroad  building  prior  to  the  year  1857.  The  panic 
of  1857  had  wiped  out  all  of  this  stock  and  left  many  of 
the  farmers  who  executed  the  mortgages  facing  financial 
ruin.  To  relieve  them  if  possible  the  legislature  had  passed 
chapter  49  of  the  laws  of  1858,  intended  to  deprive  the 
assignees  of  such  notes  and  mortgages  of  their  rights  as 
holders  of  commercial  paper  or,  in  other  words,  making  the 
defense  of  fraud  good  not  only  against  the  original  payee, 
but  against  an  innocent  purchaser  as  well.  The  farmers  to 
a  man  repudiated  the  mortgages  and  rested  upon  two  claims  ; 
first,  that  railroad  companies  had  no  power  under  their 
charters  to  accept  anything  in  payment  for  stock  except 
cash,  and,  second,  that  the  mortgages  were  obtained  by 
means  of  fraudulent  representations  and  (under  the  law  of 
1858)  were  invalid  for  this  reason  in  the  hands  of  any  per- 
son, even  though  he  might  be  an  innocent  purchaser.  Ac- 
tions to  foreclose  some  of  the  mortgages  were  begun  and 
brought  to  trial  in  1859  and  Judge  David  Noggle  in  the 
first  circuit  and  Judge  John  E.  Mann  in  the  third  circuit 
both  upheld  the  contention  that  the  railroad  companies  had 
no  power  to  accept  notes  and  mortgages  in  exchange  for 
stock  sold  and  Judge  Noggle  upheld  the  defense  of  fraud 


1 66  The  Story  of  a  Great  Court 

as  against  an  innocent  purchaser.  Having  obtained  these 
rulings  in  their  favor  in  the  trial  courts  the  farm  mortgagors 
rested  in  fancied  security.  The  cases  were  appealed  to  the 
Supreme  Court,  however,  and  came  on  for  hearing  in  Feb- 
ruary and  March,  i860,  but  were  not  decided  until  June 
and  July  of  that  year.1  Clark  v.  Farrington  and  Blunt  v. 
Walker  held  that  the  companies  might  lawfully  receive  a 
note  and  mortgage  in  payment  of  a  stock  subscription,  al- 
though their  charters  did  not  expressly  authorize  payment  to 
be  made  in  that  way,  the  broad  ground  being  taken  that  a 
corporation  in  exercising  the  powers  expressly  conferred 
upon  it  might  adopt  any  proper  and  convenient  means  tend- 
ing directly  to  accomplish  those  powers  which  did  not 
amount  to  the  transaction  of  a  separate  unauthorized  busi- 
ness. In  the  Cornell  case  it  was  further  held,  following  the 
very  early  cases,  that  a  bona  fide  purchaser  of  negotiable 
paper  took  not  only  the  paper  itself  but  the  mortgages  col- 
lateral thereto  free  from  all  defenses  of  which  he  had  no 
actual  notice.  In  considering  this  question  the  act  of  1858 
was  discussed  and  summarily  disposed  of  as  unconstitutional 
on  the  ground  that  the  legislature  could  not  impair  the 
obligations  of  an  existing  contract.  The  discussion  of  this 
question  in  Judge  Dixon's  opinion  in  the  Cornell  case  was 
comprised  in  a  few  brief  sentences ;  after  stating  the  general 
rule  that  vested  contract  rights  could  not  be  divested  or  im- 
paired by  legislation,  he  says : 

"In  these  cases  the  plaintiffs  had,  by  the  act  of  transfer  and 
the  operation  of  the  law  as  then  in  force,  an  immediate  and 
vested  right  to  look  to  the  makers  for  full  payment  regardless 
of  any  equities  which  existed  as  between  them  and  the  company. 
This  right  the  legislature  could  not  destroy,  or  cut  off,  either  by 


1  Clark  v.  Farrington,  11  Wis.  *306;   Blunt  v.  Walker,  11  Wis. 
*334;   Cornell  v.  Hichens,  11  Wis.  *353. 


Cole's  Second  Campaign  167 

changing  the  rules  of  pleading  or  the  laws  of  evidence,  or  by 
endeavoring  to  operate  directly  upon  the  right  itself." 

This  conclusion  seems  inevitable  now  but  it  came  with  a 
rude  shock  to  the  farm  mortgagors.  It  spelled  bankruptcy 
and  ruin  to  many  of  them  and  they  at  once  began  to  take 
measures  to  organize  for  defense.  There  had  been  already 
formed  local  associations  called  farm  mortgage  leagues  and 
having  a  central  organization  called  the  Grand  League.  A 
meeting  of  the  Grand  League  was  held  at  Rolling  Prairie 
July  5,  i860,  at  which  it  was  resolved  to  establish  a  news- 
paper organ  and  to  call  a  state  convention  of  farm  mort- 
gagors at  Watertown  July  12th.  The  convention  was  held 
and  was  largely  attended ;  the  victims  of  eight  railroads  were 
represented,  coming  principally  from  the  counties  of  Dodge, 
Columbia,  Green  Lake,  Adams,  Green,  Winnebago,  Wal- 
worth, Rock,  La  Crosse,  Waukesha,  Kenosha,  Washington 
and  Ozaukee,  which  were  the  counties  which  had  suffered 
most.  A  permanent  organization  was  effected  called  the 
Grand  State  League  of  Farm  Mortgagors,  a  constitution 
and  by-laws  adopted  and  adjournment  was  taken  until 
October  following. 

Mr.  A.  M.  Thomson  of  Hartford  (in  later  years  editor  of 
the  Milwaukee  Sentinel)  was  himself  a  farm  mortgagor  and 
writer  of  force  and  ability  and  he  was  designated  to  publish 
the  official  paper  of  the  league,  a  neat  four  page  country 
weekly,  the  first  number  of  which  was  issued  from  Hartford, 
August  11,  i860,  under  the  name  of  the  "Home  League." 
It  contained  some  local  and  political  news,  but  was  independ- 
ent in  politics  and  specially  devoted  to  the  interests  of  the 
Farm  Mortgagors.  This  paper  ran  nearly  four  years  and 
was  suspended  by  reason  of  lack  of  support  March  5,  1864. 
A  practically  complete  file  of  the  paper  (probably  the  only 


1 68  The  Story  of  a  Great  Court 

one)  is  in  the  possession  of  the  State  Historical  Society  at 
Madison  and  from  this  file  I  have  obtained  much  of  the 
data  for  what  is  here  said  about  the  farm  mortgage  move- 
ment, a  movement  which  assumed  great  proportions  and  for 
several  years  intimidated  political  parties,  dominated  legis- 
lation and  threatened  the  independence  of  the  Supreme 
Court.  It  forms  an  interesting  story,  concerning  which  a 
book  might  well  be  written,  but  which  can  only  be  briefly 
referred  to  here.  The  object  of  the  League  was  to  influence 
public  opinion,  legislatures,  and,  if  possible,  courts,  by  show- 
ing a  united  front.  It  is  said  in  the  first  number  of  the 
Home  League  that  there  were  six  thousand  of  the  farm 
mortgagors  who  owed  about  $5,000,000,  and  there  seems 
no  good  reason  to  doubt  the  statement.  Such  a  mass  of 
voters  acting  together  constituted  a  force  to  be  reckoned 
with.     No  political  party  could  afford  to  offend  them. 

The  following  are  the  closing  paragraphs  of  an  editorial 
in  the  first  number  of  the  Home  League : 

"The  Home  League  is  -the  farm  mortgagor's  flag!  It  is  the 
olive  branch  to  those  who  desire  peace,  but  the  gleam  of  the 
battle  axe  to  such  as  prefer  war.  That  flag  has  been  nailed  to 
the  mast  by  their  own  brawny  arms,  and  woe  to  the  kid  gloves 
that  essay  to  tear  it  down.  *  *  *  Does  it  do  any  good  to 
ring  the  alarm  bell  when  the  conflagration  spreads  at  midnight? 
Does  it  do  any  good  to  fire  the  signal  gun  when  the  ship  is 
sinking?  Why,  even  wild  horses,  it  is  said,  with  instinctive 
caution,  set  one  of  their  number  to  keep  sentinel  while  the  herd 
is  feeding  to  give  alarm  of  the  approach  of  danger,  and  is  it 
not  wisdom  in  us  to  put  a  watchman  on  duty  when  we  know 
there  are  robbers  about?  The  rattlesnake  gives  fair  notice  ere 
he  strikes;  so  beware  0  stockjobber  when  you  hear  the  rattle! 
The  fang  follows  the  warning!" 

In  another  editorial  in  the  same  number  of  the  paper  it 
is  said  that  the  decision  in  Clark  v.  Farrington  and  the  com- 
ments of  leading  papers  of  the  state  thereon  showed  that 


Cole's  Second  Campaign  169 

the  Court  and  the  press  were  both  on  the  side  of  the  bond- 
holder ;  "the  former  deciding  adversely  to  the  mortgagor  and 
the  latter  justifying  and  extolling  the  unrighteous  judg- 
ment." 

It  seems  to  be  true  that  the  leading  papers  of  the  state, 
i.  e.  the  papers  published  in  Milwaukee  and  the  larger  towns, 
approved  of  the  decisions  in  the  farm  mortgage  cases  on 
the  ground  that  any  other  decision  would  subject  the  state 
to  the  charge  of  repudiation  and  thus  would  effectually  ruin 
the  credit  of  the  young  state;  there  were,  however,  some 
papers  published  in  the  smaller  towns  which  sympathized  so 
strongly  with  the  farm  mortgagors  that  they  did  not  hesitate 
to  denounce  the  decision ;  the  Democratic  papers  hoping  to 
gain  a  party  advantage  thereby,  and  the  Republican  papers 
being  all  the  more  bitter  because  all  the  members  of  the 
Court  were  known  to  be  Republican  in  politics.  A  number 
of  expressions  of  this  kind  are  reproduced  in  the  first  num- 
ber of  the  "Home  League"  and  from  them  two  may  be 
quoted  as  typical. 

The  La  Crosse  Union  (a  Democratic  paper),  said: 
"Those  farmers  who  voted  the  Republican  ticket  last  fall 
under  promise  that  a  Republican  Supreme  Court  would  release 
them  from  their  railroad  obligations  are  now  waking  up  to  their 
sorrow.  The  greater  the  steal,  the  greater  the  Republican  lead- 
ers labor  to  make  it  legitimate.  It  may  be  a  good  tbing  for 
the  state  but  it  pains  us  to  see  the  thousands  of  little  farms 
with  their  white  cottages  or  more  humble  cabins,  the  growing 
crops,  the  labor  of  years,  the  result  of  toil,  the  earnings  of 
honest  men,  intended  to  be  left  to  the  widow  and  orphans,  all 
swept  into  the  pockets  of  railroad  owners  as  the  roulette  keeper 
sweeps  the  dollars  into  the  bag  under  the  table  and  turns 
again  to  catch  new  victims.  It  may  be  an  honor  to  legalize 
fraud  but  it  is  not  honest  nor  is  it  humanity.  There  is  scarce 
a  county  in  the  state  but  soon  will  see  going  forth  from  the 
little  homes,  hallowed  by  joy  and  made  sacred  with  grief,  leav- 


1  70  The  Story  of  a  Great  Court 

ing  a  loved  fireside  wet  with  tears,  a  caravan  of  broken  hearts 
and  blasted  hopes,  wending  its  way  on  toward  the  golden  sunset 
where  fraud,  trickery  and  dishonesty  is  not  yet  in  the  full  tide 
of  successful  operation." 

The  Wisconsin  State  Rights  (a  Republican  paper),  said: 
"The  Supreme  Court  may  do  what  it  pleases.  It  may  over- 
throw all  the  law  of  corporations  and  encourage  combined 
swindling  to  the  last  degree,  but  an  appeal  will  be  taken  to  the 
great  jury  of  the  people.  There  can  be  little  doubt  of  the  ver- 
dict. Justice,  common  sense,  law,  right  and  equity  are  on  the 
side  of  the  farmers.  The  community  will  not  stand  tamely  by 
and  see  hundreds  of  their  best  citizens  cleaned  out  through  the 
operation  of  lying,  deception  and  fraud  in  their  worst  forms, 
and  we  trust  none  other  in  the  state  will.  If  the  decision  shall 
meet  with  the  contempt  and  disrespect  from  the  people  which 
its  mutable  doctrines  provoke  the  astute  court  may  thank  itself. 
It  may  have  the  natural  fruits  of  its  incubation  to  itself.  The 
people,  when  they  fully  understand  the  nature  of  the  decisions 
in  the  cases,  will  sit  in  effective  judgment  thereon." 

Nor  was  the  denunciation  of  the  decisions  confined  to 
the  newspapers.  Mr.  James  H.  Knowlton  of  Janesville,  one 
of  the  most  prominent  and  active  of  the  early  lawyers  of 
the  state,  reviewed  the  decisions  from  a  legal  point  of  view 
in  a  long  communication  published  in  the  "Home  League" 
in  the  numbers  dated  September  8th  and  September  15th 
respectively  and  took  the  ground  that  the  Court  was  wrong 
in  holding  that  corporations  possessed  all  the  powers  con- 
venient for  the  carrying  out  of  their  express  powers,  and 
arguing  strongly  that  they  possessed  only  the  powers  ex- 
pressly granted  to  them  by  statute  and  such  incidental  pow- 
ers as  were  necessary  in  order  to  accomplish  their  express 
purposes ;  as  it  was  not  necessary  that  the  railroad  com- 
panies should  receive  notes  and  mortgages  in  payment  for 
their  stock  he  maintained  that  the  decisions  were  wrong  and 
gave  entirely  too  great  powers  to  corporations.     In  view  of 


Cole's  Second  Campaign  1  7 1 

the  very  widespread  dissatisfaction  as  to  the  aggressions  of 
corporate  power  which  was  to  sweep  over  the  country  half 
a  century  later  the  closing  words  of  Mr.  Knowlton's  brief 
are  interesting ;  they  are  as  follows : 

"The  doctrines  laid  down  in  this  opinion  apply  to  all  cor- 
porations. If  they  are  the  law,  the  rights  of  the  people  must 
soon  lie  buried  beneath  the  crushing  weight  of  irresponsible 
monopolies." 

The  second  convention  of  the  Grand  State  League  of 
Farm  Mortgagors  was  held  at  Watertown,  October  9,  i860, 
and  a  committee,  of  which  A.  M.  Thomson  was  chairman, 
was  appointed,  to  prepare  an  address  to  the  people  of  the 
state.  In  the  mean  time  local  lodges  of  the  league,  with 
regular  stated  meetings,  were  being  formed  in  all  the  com- 
munities where  there  were  a  sufficient  number  of  farm  mort- 
gagors to  justify  it,  and  thus  a  very  complete  organization 
of  a  fraternal  order  was  perfected. 

Judge  Cole  had  been  elected  in  the  spring  of  1855  for  a 
term  of  six  years  and  hence  the  election  for  his  successor 
must  necessarily  take  place  in  the  spring  of  1861  and  natur- 
ally in  the  fall  of  i860  the  thoughts  of  the  farm  mortgagors 
began  to  turn  toward  the  question  of  who  that  successor 
should  be. 

Probably  it  was  not  seriously  expected  that  the  Court 
would  reverse  its  former  holding,  even  if  a  new  member 
should  be  put  on  in  Judge  Cole's  place,  but  it  was  unques- 
tionably expected  that  legislation  of  some  sort  would  be 
obtained  making  the  collection  of  the  farm  mortgages  very 
difficult,  if  not  impossible,  and  it  was  of  great  importance 
that  a  man  should  be  placed  on  the  bench  in  sympathy  with 
the  farm  mortgagors  in  order  that  they  might  have  a  friend 
at  court  when  the  question  of  the  constitutionality  of  the 
expected  legislation  should  be  presented  for  decision.     In 


1  72  The  Story  of  a  Great  Court 

an  editorial  in  the  "Home  League"  of  October  27,  i860,  it 
is  said  that  a  rumor  is  in  circulation  that  Judge  Dixon  now 
repudiates  the  decision  in  Clark  v.  Farrington  on  the  ground 
that  Judge  Paine's  opinion  is  exactly  the  reverse  of  the  de- 
cision actually  made  by  the  Court.  The  absurdity  of  this 
rumor  is  apparent  when  it  is  remembered  that  Judge  Dixon 
himself  wrote  the  opinion  in  Blunt  v.  Walker  (decided  with- 
in a  month  after  Clark  v.  Farrington)  in  which  the  same 
principles  laid  down  in  the  latter  case  were  emphatically  ap- 
proved and  reaffirmed.  The  editorial  is  extremely  bitter  in 
its  language  and  closes  with  the  statement,  "That  he 
(Dixon)  ought  to  be  impeached  we  have  every  reason  for 
believing." 

In  the  same  issue  is  to  be  found  a  communication  from  an 
anonymous  farm  mortgagor  containing  the  following  sen- 
tences with  regard  to  the  Supreme  Court : 

"These  judges  are  my  friends  and  do  very  well  as  a  general 
thing  for  a  'boy  court,'  but  we  who  have  the  votes  with  which 
to  manufacture  judges  intend  to  supply  their  places  one  of  these 
days  with  men  who  have  the  nerve  to  grapple  with  great  ques- 
tions and  are  not  to  be  warped  from  their  line  of  duty  by  the 
clamorous  voice  of  railroad  thieves  and  stock  jobbers,  even  when 
backed  by  a  venal  press." 

The  reference  to  the  "boy  court"  is  better  understood 
when  it  is  remembered  that  in  the  fall  of  i860  Chief  Justice 
Dixon  was  but  thirty-five  years  of  age  and  Associate  Justices 
Paine  and  Cole  were  but  thirty-three  and  forty-one  years 
of  age  respectively. 

The  address  to  the  people,  prepared  by  the  committee  of 
which  Mr.  Thomson  was  chairman,  appeared  just  as  the 
legislature  of  1861  was  assembling  and  will  be  found  printed 
at  length  in  the  issue  of  the  "Home  League"  of  January  12, 
1861.  It  details  at  length  the  wrongs  of  the  farm  mort- 
gagors and  appeals  for  legislative  help. 


Coles  Second  Campaign  1  73 

In  the  same  number  appears  a  communication  suggesting 
that  the  state  should  assume  the  debts  of  the  farm  mortgag- 
ors.    In  his  message  to  the  legislature  (which  appears  in  the 
same  paper)   Governor  Randall  suggests  that  the  railroad 
land  grant    lands    be  sold    with    the    consent  of  Congress 
and  the  proceeds  used  to  relieve  the  burdens  of  the  mort- 
gagors.    Both  of  these  propositions  were  manifestly  chimer- 
ical and  came  to  nothing.     The  legislature,  however,  spent 
much  time  endeavoring  to  devise  a  law  which,  while  not 
impairing  the  obligations  of  contracts,  should  throw  such 
difficulties  in  the  way  of  foreclosing  the  railroad  mortgages 
as  to  render  them  nearly  or  quite  valueless.     The  task  was 
a  difficult  one  as  may  be  imagined.     There  was  little  if  any 
party  politics  involved.     The  members  coming  from  farm 
mortgage  districts,  whether  Republicans  or  Democrats,  were 
nearly  all  anxious  for  the  passage  of  some  law  helping  the 
mortgagors  out  of  their  difficulties  and  few  members  from 
other  districts  wished  to  antagonize  the  farm  mortgage  vote. 
The  question  was,  how  far  could  legislation  go  in  making 
the  mortgagees'  lot  uncomfortable  and  still  escape  condemn- 
ation by  the  courts  ?     There  were  some  members  indeed,  and 
notably  among  them  were  John  G.  Clark  of  Grant  County 
and  Wyman  Spooner  of  Walworth,  who  boldly  denounced 
the  attempts  to  nullify  contracts  by  making  their  enforce- 
ment impossible,  but  they  made  little  impression  and  chapter 
88  of  the  laws  of  1861  was  passed  early  in  March,  1861, 
and  published  three  days  later. 

The  act  covers  eight  pages,  relates  only  to  mortgages 
given  for  stock  in  corporations  and  is  an  interesting  example 
of  a  legislative  attempt  to  accomplish  unconstitutional  ends 
by  strictly  constitutional  means.  In  a  word,  it  makes  fore- 
closure proceedings  so  long,  laborious  and  uncertain  that,  in 


1  74  The  Story  of  a  Great  Court 

effect,  it  takes  away  any  effective  remedy,  and  this  was  un- 
questionably the  result  desired. 

Its  principal  provisions  are  in  substance  (i)  that  a  com- 
pulsory reference  shall  be  had  and  that  all  testimony  which 
either  party  may  desire  to  give  be  taken  by  the  referee ; 

(2)  that  a  motion  may  be  made  before  the  court  to  strike 
out  or  suppress  all  or  any  part  of  the  testimony  taken ; 

(3)  that  an  appeal  may  be  taken  from  any  order  made  on 
such  motion,  which  appeal  shall  constitute  a  stay  of  pro- 
ceedings ;  (4)  that  any  issue  of  fact  be  tried  by  a  jury  on  de- 
mand of  either  party;  (5)  that  if  fraud  or  want  of  consid- 
eration be  set  up  as  a  defense  the  instrument  itself  shall  be 
deemed  prima  facie  to  be  held  by  the  plaintiff  with  full  notice 
of  all  equities  existing  between  the  original  parties,  and  the 
plaintiff's  oath  shall  not  be  deemed  sufficient  evidence  to 
remove  the  presumption;  (6)  that  plaintiff,  if  defeated  in 
the  action,  shall  file  the  mortgage  and  note  for  cancellation, 
and  in  case  of  appeal  the  same  shall  not  be  effective  till  the 
note  and  mortgage  are  filed  and  all  costs  paid;  (7)  that  the 
referee  shall  have  power  to  require  production  before  him 
of  any  record,  paper,  book  or  memorandum  belonging  to  or 
which  ever  belonged  to  the  corporation,  and  any  such  record, 
paper,  book,  memorandum  or  statement  in  writing  made  by 
any  officer,  agent,  director  or  employee  in  the  due  course  of 
his  business  as  such  shall  be  held  an  admission  of  the  cor- 
poration and  sufficient  evidence  as  against  the  corporation 
of  the  facts  stated  in  it;  (8)  that  all  such  actions  shall  be 
brought  and  tried  in  the  county  where  the  mortgaged  prem- 
ises are  situated  provided  that  the  persons  contesting  the 
validity  of  the  instrument  shall  be  entitled  to  a  change  of 
venue  for  the  reasons  provided  by  law  in  other  civil  actions  ; 
(9)  that  the  defendant  shall  not  be  required  to  pay  costs  on 


Cole's  Second  Campaign  1  75 

continuances  or  on  appeal  until  after  final  judgment  in  the 
action,  and  that  plaintiff  shall  be  required  to  give  security 
for  costs  on  application  of  any  defendant;   (10)   that  the 
referee  shall  be  entitled  to  receive  ten  cents  per  folio  for  all 
writing  necessarily  done  by  him  and  ten  cents  for  every  mile 
necessarily  traveled  in  going  to  the  place  fixed  for  taking 
the  testimony,  all  of  which  charges  must  be  paid   (unless 
waived  by  the  referee)  before  the  testimony  is  reported  to 
the  court ;  ( 1 1 )  that  either  party  may  appeal  to  the  Supreme 
Court  from  final  judgment  by  filing  and  serving  a  written 
notice  of  appeal  within  four  years  after  written  notice  of  the 
judgment,  which  notice  shall  constitute  a  stay  of  proceed- 
ings until  the  appeal  is  determined;  (12)  that  in  case  plain- 
tiff recover  judgment  and  the  land  be  sold  no  title  shall  be 
acquired  by  the  purchaser  until  the  time  for  taking  an  ap- 
peal has  expired;  (13)  that  no  judgment  for  deficiency  shall 
be  rendered  in  such  an  action;  (14)  that  any  defense  which 
may  be  made  by  the  makers  of  the  mortgage  may  also  be 
made   by   all   persons   having   any   interest   in   the   lands ; 
(15)  that  if  any  mortgagee  advertise  the  mortgaged  prem- 
ises for  sale  under  a  power  of  sale  in  the  mortgage,  the  cir- 
cuit or  county  court  of  the  county  upon  petition  of  the 
mortgagor,  stating  that  the  mortgage  was  obtained  by  fraud 
or  given   without   consideration,   shall  make  an  order  en- 
joining the  sale  and  ordering  an  issue  to  be  made  up  and 
tried  in  the  circuit  court  in  the  same  manner  as  prescribed 
in  the  act  for  foreclosures;  (15)  in  all  such  actions  the  par- 
ties shall  be  limited  to  the  remedies  prescribed  by  the  act; 
and  (16)  that  no  witness  shall  be  excused  from  answering 
any  material  question,  but  his  testimony  shall  not  be  used 
against  him  criminally. 


1  76  The  Story  of  a  Great  Court 

The  farm  mortgage  question  was  unquestionably  the  most 
interesting  public  question  which  came  before  the  legislature 
during  the  whole  session  and  it  provoked  much  debate. 
Meanwhile,  however,  the  question  as  to  whether  there  should 
be  party  nominations  made  of  candidates  for  the  judicial 
election  in  April  was  vexing  the  politicians. 

The  Republican  politicians  had  received  a  severe  lesson  in 
the  spring  of   i860  when  they  had  turned  down  Dixon's 
name  and  nominated  A.  Scott  Sloan  simply  because  of  his 
views  on  state  rights  and  had  been  rebuked  by  the  people 
at  the  polls ;  on  the  other  hand  the  Democrats  had  been  de- 
feated by  more  than  20,000  votes  at  the  presidential  election 
in  the  fall  of  i860  and  manifestly  were  in  no  condition  to 
make  a  winning  fight.     Moreover  the  shadow  of  the  farm 
mortgage  agitation  was  over  the  whole  political  field.     While 
neither  party  wished  to  surrender  to  the  farm  mortgagors, 
at  the  same  time  neither  party  wished  to  put  up  a  candidate 
known  to  be  antagonistic  to  them.     There  were  also  serious 
differences  of  opinion  in  both  parties.     Judge  Cole  had  been 
elected  on  the  state  rights  issue,  and  while  the  ultra  state 
rights  men  were  still  in  control  that  doctrine  was  every  day 
losing  ground  on  account  of  the  secession  movement  in  the 
south,  which  was  but  the  logical  result  of  the  extreme  state 
rights    view    which    the    Republicans    of    Wisconsin    had 
adopted.     So  Judge  Cole  was  not  popular  with  that  section 
of  the  Republican  party  which  believed  in  the  supremacy  of 
the  federal  authority,  nor  with  the  farm  mortgage  element. 
On  the  other  hand,  the  Democrats  were  demoralized  by  their 
recent  sweeping  national  defeat ;  and  the  weakness  of  the 
closing  days  of  the  Buchanan  administration  was   driving 
thousands  of  the  strongest  men  of  the  party  into  the  Repub- 
lican ranks. 


Cole's  Second  Campaign  1 77 

Thus  matters  drifted  along  without  party  action  until 
February  20,  1861,  when  a  caucus  of  Republican  members 
of  the  legislature  was  held  and  after  full  discussion  it  was 
resolved  to  present  no  party  candidate  to  the  people. 

At  about  the  same  time  calls  began  to  be  circulated  among 
the  bar  and  the  people  requesting  Judge  Cole  to  stand  for 
re-election  as  a  non-partisan  candidate.  This  served  to  clar- 
ify the  situation.  Whatever  else  Judge  Cole  stood  for  he 
certainly  did  not  stand  for  the  ideas  of  the  farm  mortgagors 
for  he  had  been  a  member  of  the  Court  which  had  held  the 
mortgages  valid  and  set  aside  the  law  of  1858  intended  to 
relieve  the  mortgagors  of  their  burdens.  It  was  evident 
that  the  farm  mortgagors  must  look  elsewhere  for  help. 

Naturally  and  almost  necessarily  they  turned  their  eyes 
to  James  H.  Knowlton  of  Janesville ;  he  if  any  one  was  the 
logical  candidate.  He  was  a  brilliant  lawyer  and  had  been 
very  prominent  in  the  history  of  the  state.  He  had  stood 
side  by  side  with  such  legal  giants  as  Jonathan  E.  Arnold, 
Edward  G.  Ryan,  Matt  H.  Carpenter  and  Harlow  S.  Orton 
in  such  cases  as  the  Hubbell  impeachment  and  the  Bashford- 
Barstow  controversy;  he  had  also  been  deemed  worthy  to 
be  upon  the  same  ticket  with  the  lamented  Whiton  as  a 
candidate  for  Associate  Justice  of  the  Supreme  Court  at 
the  judicial  election  in  1852.  But  more  than  all  this,  in  the 
eyes  of  the  farm  mortgagors  at  least,  he  had  dared  to  attack 
the  decision  in  the  Clark  and  Farrington  case  and  declare 
that  decision  to  be  bad  law  in  a  newspaper  article  which  was 
at  least  an  able  and  lawyerlike  argument,  whatever  may  be 
said  as  to  its  correctness.  Mr.  Knowlton  was  a  Republican 
and  for  this  reason  might  be  expected  to  cut  into  Judge 
Cole's  vote,  moreover  he  was  willing  and  even  anxious  to 
run.  Mr.  Knowlton  was  then  living  at  Janesville  and  in 
12 


1  78  The  Story  of  a  Great  Court 

February  calls  were  put  in  circulation  in  Janesville  and  in 
other  parts  of  the  state,  asking  him  to  become  a  candidate. 
Judge  Cole  accepted  the  call  upon  him  in  a  communication 
dated  March  6th  and  Mr.  Knowlton  accepted  under  date  of 
March  13th  and  the  campaign  was  on. 

The  Democracy  generally  seem  to  have  been  disposed  to 
let  the  two  Republicans  fight  it  out  without  interference,  but 
a  faction  of  the  party  led  by  Beriah  Brown  of  Milwaukee, 
chairman  of  the  Democratic  state  central  committee,  thought 
the  opportunity  to  run  in  a  Democrat  too  good  to  be  lost  and 
in  March  the  committee  took  the  responsibility  of  naming 
Charles  A.  Eldridge  of  Fond  du  Lac,  afterwards  member  of 
Congress  for  some  years,  as  the  Democratic  candidate.  Mr. 
Eldridge  was  absent  from  the  state  when  this  announcement 
was  made  and  on  his  return  a  few  days  later  he  withdrew 
his  name.  No  further  nomination  was  made,  but  some  five 
thousand  Democrats  refused  to  accept  Mr.  Eldridge's  de- 
clination and  persisted  in  voting  for  him. 

The  campaign  between  Cole  and  Knowlton  was  conducted 
with  some  vigor  by  the  farm  mortgagors.  They  generally 
conceded  Judge  Cole's  ability  but  urged  that  he  was  in 
sympathy  with  stock  jobbers,  as  shown  by  the  farm  mort- 
gage decisions.  Returns  were  slow  in  coming  in  after  the 
election  and  the  first  returns  came  principally  from  the  farm 
mortgage  country  and  showed  enormous  losses  for  Cole. 
In  some  of  the  towns  of  Washington  County  he  received  but 
a  beggarly  half  dozen  of  votes  or  none  at  all.  For  several 
days  it  looked  very  much  as  though  Knowlton  was  elected 
and  his  supporters  confidently  claimed  that  such  was  the 
result  and  Judge  Cole's  friends  were  not  disposed  to  se- 
riously contest  the  claim.  But  about  a  week  after  the 
election,  as  the  returns  from  the  northeastern  and  northern 


Cole's  Second  Campaign  1  79 

parts  of  the  state  began  to  come  in,  the  prospects  changed 
and  about  ten  days  after  the  election  it  was  generally  ad- 
mitted that  Judge  Cole  was  re-elected.  His  final  majority 
over  Knowlton  amounted  to  something  more  than  five 
thousand  votes. 

Thus  ended  in  well  deserved  defeat  another  attempt  to  de- 
feat a  sitting  judge  because  of  a  decision.  The  idea  that  an 
honest  judge  is  to  meet  with  defeat  whenever  a  decision 
made  by  him  does  not  accord  with  the  popular  idea  upon 
the  subject  is  an  idea  which  can  only  make  timeservers  and 
cowards  of  the  occupants  of  the  bench.  It  is  at  least  one 
degree  worse  than  the  idea  that  an  honest  judge  should  be 
defeated  because  his  political  views  are  at  variance  with 
the  majority.  Fortunately  for  the  stability  and  manhood  of 
the  bench  both  of  these  ideas  have  been  generally  repudiated 
in  Wisconsin.  The  election  of  Judge  Dixon  in  i860,  in  the 
face  of  a  Republican  party  nomination  against  him,  and  the 
election  of  Judge  Cole  in  1861  in  the  face  of  a  demand  from 
the  farm  mortgagors  that  he  be  defeated  because  of  a  deci- 
sion, are  the  two  early  finger  posts  which  pointed  the  way 
to  non-partisan  judicial  elections  in  Wisconsin.  To  the 
credit  of  the  state  be  it  said  that  these  early  examples  have 
been  generally  followed. 

Early  in  the  January  term,  1862,  chapter  88  of  the  laws  of 
1 86 1  came  before  the  Court  for  review  2  and  was  condemned 
as  substantially  impairing  the  obligations  of  contracts  in  a 
brief  opinion  written  by  Judge  Cole.  Without  going  into 
the  details  of  the  law  he  thus  characterized  it: 

"It  is  difficult  to  perceive  how  any  candid  person  capable  of 
reading  the  law  and  comprehending  its  provisions,  can  fail  to 
see  upon   its  very   face   an   intention   to   clog,   hamper   and   em- 


2  0atman  v.  Bond,  15  Wis.   *20. 


1 80  The  Story  of  a  Great  Court 

barrass  the  proceedings  to  enforce  the  remedy,  so  as  to  destroy 
it  entirely  and  thus  impair  the  contract  so  far  as  it  is  in  the 
power  of  the  legislature  to  do  it." 

Judge  Paine  concurred  in  the  decision  but  placed  his  con- 
currence on  the  ground  that  the  law  infringed  that  provision 
of  the  constitution  which  guarantees  to  every  person  a  cer- 
tain remedy  in  the  law  for  all  injuries  or  wrongs  to  person, 
property  or  character. 

Thus  the  second  attempt  of  the  legislature  to  relieve  the 
mortgagors  from  their  contracts  failed  and  again  the  Court 
was  compelled  to  bear  the  odium  of  the  failure.  It  seems 
best  to  make  brief  reference  at  this  time  to  the  further  legis- 
lative attempts  which  were  made  along  this  line  in  order 
that  the  whole  subject  may  be  consecutively  treated.  In 
April,  1862,  an  act  was  passed  making  elaborate  provisions 
for  the  creation  of  sinking  funds  in  the  hands  of  commis- 
sioners to  which  the  various  railroads  were  to  contribute  a 
certain  percentage  yearly  and  out  of  which  payments  were 
to  be  made  to  the  holders  of  farm  mortgages  who  chose  to 
surrender  their  securities  up  to  certain  given  percentages 
of  the  face  thereof,  but  as  this  act  never  came  before  the 
Court  no  time  need  be  spent  in  considering  it.3 

By  chapter  305  of  the  laws  of  1863  a  new  and  special 
action  to  quiet  title  of  real  estate  and  cancel  mortgages 
thereon  was  created  which  was  evidently  expressly  intended 
to  cover  this  class  of  mortgages ;  it  provided  for  publication 
of  the  summons  against  unknown  holders  of  the  mortgage 
and  for  an  adjudication  declaring  the  same  void  if  it  was 
shown  to  have  been  obtained  by  fraud,  also  that  the  judg- 
ment should  have  the  same  conclusive  effect  against  un- 
known defendants  as  against  absent  defendants  and  that  any 


3  Chap.   330,  Laws  1862. 


Cole's  Second  Campaign  1 8 1 

appeal  from  the  judgment  must  be  taken  within  six  months 
from  its  entry  and  not  thereafter ;  it  also  provided  for  a 
jury  trial  on  demand  of  either  party  which  should  not  be 
set  aside  for  informality  but  should  be  conclusive  on  the 
facts  in  the  case.  Following  this  act  came  chapter  169  of 
the  laws  of  1864  which  provided  that  in  every  foreclosure 
of  a  mortgage  given  to  a  corporation  every  issue  of  fact 
upon  demand  of  either  party  should  be  tried  by  a  jury, 
whose  verdict  should  be  conclusive  as  in  other  cases  of  trial 
by  jury.  This  act  came  before  the  Court  at  the  January 
term,  1866,4  and  it  was  held  that  in  an  equity  case  the  Court 
was  not  obliged  to  submit  an  issue  to  a  jury  unless  it  thought 
proper  to  do  so,  and  the  power  of  the  legislature  to  make 
the  rinding  of  the  jury  in  such  a  case  conclusive  was  ques- 
tioned. In  1867,  however,  the  legislature  again  returned  to 
the  subject  and  passed  chapter  79,  which  contained  sweeping 
provisions  that  in  all  foreclosure  actions  all  issues  of  fact 
should  be  tried  by  a  jury,  unless  the  right  was  waived ;  that 
all  power  of  the  Court  to  pronounce  judgment  in  such  an 
action  without  the  intervention  of  a  jury  was  abrogated,  ex- 
cept where  the  parties  expressly  waived  jury  trial,  and  that 
the  verdict  should  be  conclusive,  as  in  cases  of  common  law 
origin. 

This  law  came  up  at  the  June  term,  1868,5  and  was  held 
unconstitutional  in  a  very  lucid  opinion  by  Judge  Paine  on 
the  ground  that  the  constitution  had  vested  the  circuit  court 
with  the  judicial  power  of  the  state,  both  as  to  actions  at 
law  and  in  equity  and  hence  the  legislature  could  not  with- 
draw from  that  court  the  judicial  power  in  equitable  actions 
and  confer  it  upon  juries. 


•*  Truman  v.  McCollum,  20  Wis.  *360. 
5  Callanan  v.   Judd,  23  Wis.  343. 


1 82  The  Story  of  a  Great  Court 

Here  the  efforts  of  the  legislature  to  relieve  the  farm 
mortgagors  seem  to  have  ended  in  what  might  be  called 
complete  failure.  This  conclusion,  however,  would  hardly 
be  an  accurate  one.  It  is  true  that  the  relief  laws  had  all 
been  set  aside  but  still  they  had  been  of  some  practical  effect. 
While  on  the  statute  books  they  had  undoubtedly  served  as 
a  club  under  the  fear  of  which  many  holders  of  mortgages 
had  deemed  it  best  to  settle  their  claims  at  a  reduction  and 
sometimes  a  considerable  reduction  from  the  face  value. 
Probably  not  many  of  the  farmers  paid  dollar  for  dollar  of 
the  principal  and  interest  of  their  mortgages  and  some  se- 
cured very  favorable  settlements. 

In  reviewing  this  long  contest  one  can  hardly  help  feeling 
considerable  sympathy  for  the  mortgagors.  After  all  has 
been  said  that  may  be  said  about  the  inviolability  of  con- 
tracts and  the  unconstitutionality  of  legislation  impairing 
the  obligations  of  contracts  the  fact  remains  that  six  thou- 
sand and  more  of  the  sturdy  farmers  of  the  state  had  been 
sadly  victimized.  Not  a  few  of  them  had  been  the  dupes  of 
coldblooded  swindlers,  while  others  had  simply  acted  on  the 
erroneous  supposition  (in  which  both  the  farmer  and  the 
railroad  agent  innocently  shared)  that  the  farmer's  land 
would  be  vastly  enhanced  in  value  by  the  construction  of  the 
railroad. 

But  whether  the  farmers  suffered  from  deliberate  fraud 
or  from  a  mere  honest  mistake  none  of  them  had  in  fact 
received  a  dollar  in  value  for  the  mortgage  on  his  farm. 
The  layman  who  is  threatened  with  the  foreclosure  of  a 
large  mortgage  upon  his  home  is  not  likely  to  be  particularly 
moved  by  the  argument  that  a  law  relieving  him  from  his 
difficulty  would  impair  the  obligation  of  his  contract,  when 
in  fact  he  received  no  value  for  the  mortgage  and  its  present 


Cole's  Second  Campaign  1 83 

holder  bought  it  for  a  song.  One  can  hardly  blame  men 
placed  in  this  unfortunate  situation  for  organizing  and  at- 
tempting to  obtain  legislation  which  should  avert  financial 
ruin. 

On  the  other  hand,  the  Court  showed  commendable  cour- 
age in  a  difficult  situation.  Doubtless  the  judges  would  have 
greatly  preferred  to  decide  the  other  way.  They  would 
have  achieved  great  present  popularity  by  such  a  course. 
But  they  hewed  to  the  line  and  preserved  inviolate  the  legal 
principles  which  the  constitution  had  laid  down,  though  they 
were  threatened  with  defeat  and  denounced  as  the  tools  of 
stock  jobbers  and  swindlers. 

Taken  altogether  the  farm  mortgage  chapter  is  a  chapter 
in  the  history  of  the  Court  of  which  every  citizen  may  well 
feel  proud.  An  elective  bench  in  the  midst  of  great  popular 
clamor  and  threats  of  defeat  preserved  its  judicial  inde- 
pendence intact,  refused  to  be  coerced  or  dragooned  and  was 
finally  sustained  in  its  course  by  the  people  at  large. 


1 84  The  Story  of  a  Great  Court 

CHAPTER  XV 

WAR  QUESTIONS  ;  THE  CLASH   WITH   PRESIDENT  LINCOLN 

The  first  seven  years  of  the  history  of  the  Supreme  Court 
had  been  eventful,  not  to  say  exciting,  years.  The  Court 
had  been  obliged  to  act  judicially  on  a  number  of  questions 
political  in  their  nature  concerning  which  the  public  mind 
was  at  fever  heat.  It  had  defied  the  judicial  power  of  the 
United  States  and  practically  ousted  an  acting  chief  magis- 
trate of  the  state  from  his  office.  Its  judges  had  been 
violently  denounced  as  usurpers  and  tyrants  on  the  one  hand 
and  hysterically  applauded  as  deliverers  from  federal  despot- 
ism on  the  other,  and  they  had  all  reached  their  seats  after 
contests  as  violently  partisan  as  could  well  be  imagined. 
Nor  was  the  Court  to  be  soon  released  from  the  consider- 
ation of  public  questions  Avhich  were  political  in  their  nature. 
The  great  civil  war  was  approaching  more  rapidly  than  any 
one  knew :  naturally  it  was  to  bring  its  own  new  and  difficult 
questions,  but  few  could  have  anticipated  that  as  a  result 
of  one  of  these  new  questions  the  same  Court  which  locked 
horns  with  Chief  Justice  Taney  as  to  the  constitutionality 
of  the  fugitive  slave  law  was  to  stand  shoulder  to  shoulder 
with  Taney  in  opposition  to  President  Lincoln  and  deny  the 
President's  power  to  do  an  act  which  he  deemed  absolutely 
essential  to  the  saving  of  the  Union,  yet  such  was  the  fact. 

Probably  no  war  in  the  world's  history  had  raised  so  many 
questions  which  came  before  the  courts  for  decision  as  our 
civil  war  was  destined  to  raise  and  a  moment's  reflection 
will  demonstrate  that  this  was  only  natural.     Since  the  days 


The  Clash  with  President  Lincoln  1 85 

of  Alexander  the  Great,  the  tyrant  has  ever  been  the  suc- 
cessful warrior.  Republics  have  indeed  existed  and  Re- 
publics have  waged  successful  wars,  but  the  genius  of  the 
true  Republic  is  not  for  war,  least  of  all  civil  war,  but  for 
peace.  Especially  is  this  true  of  the  Republic  formed  by 
the  colonists  of  America.  They  had  fled  from  Europe  for 
the  express  purpose  of  escaping  tyranny ;  they  had  braved 
the  terrors  of  the  ocean  and  defied  the  dangers  of  the  wilder- 
ness and  its  savage  hordes  because  they  would  have  no 
despotic  rule,  but  would  have  the  rights  of  freemen.  When 
they  formed  their  constitution  they  laid  emphasis  first  and 
last  upon  individual  liberty  and  its  adequate  protection. 
They  took  infinite  precautions  to  guarantee  to  themselves 
and  their  children  freedom  of  thought,  of  speech  and  of 
action,  freedom  from  arbitrary  arrest,  fair  and  open  jury 
trial  as  well  as  all  the  other  rights  and  privileges  which  had 
been  dear  to  the  Anglo  Saxon  heart  since  the  days  of  Runny- 
mede  but  which  had  often  been  greviously  disregarded  by 
Tudor  and  Stuart  kings.  Thus  they  fenced  in  the  executive 
power  with  constitutional  inhibitions  and  restrictions  so  that 
the  chief  magistrate  became  frequently  little  more  than  a 
figure  head. 

They  themselves  had  suffered  from  the  exercise  of  ar- 
bitrary power,  they  were  jealous  of  it  and  would  have  none 
of  it.  If  this  was  the  situation  as  to  state  constitutions  it 
was  doubly  true  as  to  the  federal  constitution.  At  the  time 
of  its  adoption  and  up  to  the  very  outbreak  of  the  civil  war 
the  federal  government  was  unquestionably  viewed  askance 
and  with  suspicion  by  the  people  at  large.  True  they  had 
voluntarily  organized  the  national  government  but  still  it 
was  generally  regarded  rather  as  an  unpleasant  necessity 
than  as  a  desirable  institution,  and  whenever  any  section  felt 


1 86  The  Story  of  a  Great  Court 

the  weight  of  federal  power  that  section  had  been  prompt  to 
threaten  nullification  or  secession  or  both  and  this  tendency 
was  fully  as  great  in  the  north  as  in  the  south. 

Grudgingly  they  had  given  power  to  the  federal  govern- 
ment and  jealously  they  watched  its  exercise.  They  had 
been  specially  careful  to  limit  the  powers  of  the  President. 
The  danger  that  a  strong  and  ambitious  executive  might 
some  day  arise  who  should  stretch  forth  his  hand  and  grasp 
the  kingly  crown  was  evidently  very  real  to  them  and  so 
they  took  care  to  place  the  great  powers  of  government  so 
far  as  possible  in  the  hands  of  Congress  and  simply  made 
the  President  commander  in  chief  of  the  army  and  navy  and 
required  him  to  see  that  the  laws  were  faithfully  executed. 
These  were  practically  all  of  the  independent  governmental 
powers  given  to  the  chief  magistrate ;  in  the  negotiation  of 
treaties  and  in  the  appointment  of  officers  (even  including 
the  members  of  his  own  official  household)  he  could  do  noth- 
ing save  with  the  consent  of  the  Senate,  while  the  power  of 
making  war  and  of  providing  armies  and  navies  was  con- 
ferred upon  Congress  alone. 

With  such  limited  power  vested  in  the  executive  and  so 
many  sweeping  constitutional  guarantees  against  violations 
of  individual  liberty,  all  of  which  the  courts  were  bound  to 
enforce,  it  was  inevitable  that  when  civil  war  broke  out  there 
must  come  clashes  between  the  executive  and  the  citizen. 
Individual  liberty  and  war  are  utterly  incompatible.  He 
who  successfully  prosecutes  war  must  be  able  to  exact  un- 
questioning obedience ;  he  must  for  the  time  being  be  a 
despot;  paper  constitutions  drafted  in  the  quiet  of  the 
council  chamber  with  their  nice  checks  and  balances  will 
have  little  weight  with  the  warrior  when  their  provisions 
tend  to  thwart  the  execution  of  measures  necessary  to  the 


The  Clash  with  President  Lincoln  1 87 

successful  prosecution  of  the  war ;  constitutional  government 
and  war  cannot  exist  in  the  same  territory,  the  clash  between 
the  warrior  and  the  constitution  will  be  unavoidable  and  the 
appeal  to  the  courts  will  follow  as  a  natural  result. 

Among  the  rights  preserved  in  practically  every  state 
constitution  is  the  right  to  the  free  exercise  of  the  great  writ 
of  liberty,  the  writ  of  habeas  corpus  ad  subjiciendum.  By 
this  writ  every  man  deprived  of  his  liberty  by  private  or 
official  power  is  entitled  to  be  brought  before  a  magistrate 
and  have  the  cause  of  his  detention  examined  into  judicially 
and  if  he  be  not  detained  in  pursuance  of  the  laws  of  the 
land  is  entitled  to  be  discharged.  It  is  the  writ  which 
guarantees  the  citizen  from  arbitrary  arrest  and  makes  im- 
possible an  English  or  American  bastille.  The  federal  con- 
stitution after  enumerating  the  powers  given  to  Congress 
contains  certain  inhibitory  clauses  and  among  them  this, 

"The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it." 

Up  to  the  time  of  the  civil  war  there  had  been  no  serious 
doubt  in  the  minds  of  either  lawyers  or  laymen  as  to  the 
proposition  that  the  power  to  suspend  the  operation  of  this 
great  writ  was  vested  in  Congress  alone.  In  England  un- 
lawful and  arbitrary  suspension  or  disregard  of  the  writ  by 
kingly  power  had  been  one  of  the  grievances  which  was  ever 
at  the  front  during  all  of  the  numerous  contests  between  the 
people  and  the  kings  from  the  time  of  Magna  Charta  down 
to  the  great  habeas  corpus  act  of  Charles  the  Second,  when 
the  remedy  was  supposed  to  be  secured  from  aassault  by 
executive  power  for  all  time. 

Speaking  of  the  power  to  suspend  the  writ  Blackstone 

says  (Vol.  I,  p.  136)  : 

"But  the  happiness  of  our  constitution  is,  that  it  is  not  left 
to   the   executive    power   to    determine   when   the   danger   of   the 


1 88  The  Story  of  a  Great  Court 

state  is  so  great  as  to  render  this  measure  expedient;  for  it  is 
the  parliament  only  or  legislative  power,  that  whenever  it  sees 
proper,  can  authorize  the  crown  by  suspending  the  habeas  cor- 
pus act  for  a  short  and  limited  time,  to  imprison  suspected  per- 
sons without  giving  any  reason  for  so  doing." 

The  makers  of  the  federal  constitution,  presumably  fol- 
lowing this  principle,  placed  the  clause  recognizing  the  writ 
and  preserving  it  from  suspension  except  in  case  of  rebellion 
or  invasion,  in  the  section  which  defines  and  limits  the  pow- 
ers of  Congress,  and  thus,  though  the  question  had  not  come 
before  the  courts  for  decision,  the  opinion  was  well  nigh 
universal  that  the  power  to  suspend  the  writ  was  with  Con- 
gress alone. 

At  the  time  of  the  conspiracy  of  Aaron  Burr  in  1807  Pres- 
ident Jefferson,  deeming  that  the  public  welfare  called  for 
the  suspension  of  the  writ,  communicated  his  opinion  to 
Congress  in  order  that  Congress  might  act  upon  the  subject ; 
the  Senate  passed  a  bill  suspending  the  writ,  which  was  de- 
feated by  a  large  majority  in  the  house,  but  neither  the 
President  nor  any  member  of  Congress  suggested  at  any 
time  that  the  President  might  exercise  the  power  himself. 
Chief  Justice  Marshall  in  the  case  of  Ex  parte  Ballman,  4 
Cranch,  95,  decided  in  1807,  said  (though  the  point  was  not 
before  the  Court)  : 

"If  at  any  time  the  public  safety  should  require  the  suspension 
of  the  powers  vested  by  the  act"  (i.  e.  an  act  granting  to  the 
federal  courts  the  power  to  issue  writs  of  habeas  corpus)  "in 
the  courts  of  the  United  States,  it  is  for  the  legislature  to  say 
so." 

Judge  Story  in  his  Commentaries  on  the  Constitution 
(5th  Edition,  Sec.  1342)  says: 

"It  would  seem,  as  the  power  is  given  to  Congress  to  suspend 
the  writ  of  habeas  corpus  in  cases  of  rebellion  or  invasion,  that 
the  right  to  judge  whether  the  exigency  had  arisen  must  exclu- 
sively belong  to  that  body." 


The  Clash  with  President  Lincoln  1 89 

When  President  Lincoln  came  to  Washington  in  March, 
1861,  he  found  Washington  and  its  environs  filled  with 
active  or  passive  disunionists  and  honeycombed  with  plots. 
He  was  a  good  lawyer  and,  of  course,  knew  the  construction 
that  had  always  been  placed  on  the  clause  quoted,  but  he 
doubtless  felt  that  the  preservation  of  the  Union  could  not 
wait  on  the  slow  processes  of  courts.  It  was  a  case  of 
necessity  and  necessity  knows  no  law.  He  determined  to 
take  the  bull  by  the  horns  and  exercise  the  right  of  sus- 
pension regardless  of  what  the  courts  might  say  and  on  the 
27th  of  April,  1 86 1,  he  addressed  to  Lieut.  Gen.  Scott  an 
order  authorizing  him  to  suspend  the  writ  of  habeas  corpus 
at  any  point  on  or  in  the  vicinity  of  the  military  line  between 
Philadelphia  and  Washington  if  necessary  for  the  public 
safety,  either  personally  or  through  any  officer  in  his  com- 
mand. Similar  orders  were  afterwards  issued  for  other 
lines  and  places  and  on  May  25th  John  Merryman  was  ar- 
rested at  Baltimore  by  military  authority,  charged  with  en- 
listing soldiers  for  the  confederate  army  and  confined  in  Fort 
McHenry.  He  sued  out  a  writ  of  habeas  corpus  from  Chief 
Justice  Taney  but  General  Cadwallader,  who  was  in  com- 
mand of  the  fort,  refused  to  obey  the  writ  on  the  ground 
that  the  privilege  of  the  writ  had  been  suspended  by  the 
President.  An  attachment  being  issued  against  General 
Cadwallader  for  his  disobedience,  the  officer  who  attempted 
to  serve  it  was  denied  admission  to  the  fort.  No  further 
efforts  were  made  to  enforce  obedience  to  the  writ,  but  the 
aged  Chief  Justice  wrote  and  filed  an  opinion  in  which  he 
denied  the  authority  of  the  President  to  suspend  the  privilege 
of  the  writ  and  forcibly  gave  his  reasons  for  holding  that 
the  power  to  suspend  the  writ  was  vested  in  Congress  alone.1 


1  Ex  parte  Merryman,  9  Am.  Law  Reg.  524. 


1 90  The  Story  of  a  Great  Court 

Thus  the  contest  ended  in  the  complete  triumph  of  the  mili- 
tary over  the  civil  power  so  far  as  the  fate  of  Merryman 
was  concerned.  The  times  were  too  troublous  and  the 
loyalty  of  the  North  to  President  Lincoln  was  too  pro- 
nounced to  permit  of  anything  like  serious  resistance  to  any 
act  which  he  deemed  necessary  in  the  great  struggle  for  its 
life  which  the  nation  was  then  going  through. 

The  academic  question  whether  the  power  to  suspend  the 
privilege  of  the  writ  was  vested  in  the  President  or  in  Con- 
gress was  not  so  easily  disposed  of,  however ;  a  war  of 
pamphlets  broke  out  in  which  the  subject  was  discussed  by 
eminent  lawyers  with  great  vigor  and  ability.  A  few  of 
these  are  gathered  in  the  volume  of  law  pamphlets  entitled 
"Writ  of  Habeas  Corpus"  in  the  Wisconsin  State  Library. 
The  most  important  of  these  contributions  to  the  constitu- 
tional literature  of  the  land  is  the  argument  of  the  eminent 
lawyer,  Mr.  Horace  Binney  of  Philadelphia,  in  which  the 
power  of  the  President  to  suspend  the  privilege  of  the  writ 
is  very  ingeniously  and  ably  maintained.  It  is  said  in  the 
note  on  page  215  of  the  second  volume  of  Story  on  the  Con- 
stitution (5th  Edition)  that  Mr.  Reverdy  Johnson  and  Pro- 
fessor Theophilus  Parsons  held  the  same  opinion  as  Mr. 
Binney.  Attorney  General  Bates  in  July,  1861,  sent  a  letter 
to  the  House  of  Representatives  taking  the  same  ground  but 
there  were  many  very  able  arguments  made  upon  the  other 
side.  The  opinion  of  the  bench  and  bar  probably  inclined 
to  the  view  that  the  President  had  transcended  his  power. 
As  the  Congressional  campaign  of  1862  approached  the 
President  was  denounced  by  the  Democrats  as  a  violator  of 
the  Constitution  and  political  excitement  ran  high.  The 
Wisconsin  Democratic  convention  of  that  year  adopted  a 
long  and  eloquent  address  and  sent  it  forth  broadcast  which, 


The  Clash  with  President  Lincoln  191 

while  demanding  the  vigorous  prosecution  of  the  war,  de- 
nounced the  violation  of  the  Constitution  by  the  President  in 
various  ways  but  especially  in  the  matter  of  the  suspension 
of  the  privilege  of  the  writ  of  habeas  corpus.  This  address 
was  called  at  the  time  the  "Ryan  address"  because  under- 
stood to  have  been  prepared  by  Edward  G.  Ryan. 

Drafts  becoming  necessary  in  the  summer  of  1862  to  fill 
the  depleted  ranks  of  the  Union  armies  and  these  drafts  be- 
ing sometimes  the  occasion  of  riots  and  disorder,  the  Pres- 
ident on  the  24th  day  of  September,  1862,  issued  a  proclama- 
tion declaring  that  all  persons  resisting  the  drafts  should 
be  subject  to  martial  law  and  suspending  the  writ  of  habeas 
corpus  as  to  all  persons  imprisoned  in  any  fort,  camp,  arsenal 
or  military  prison  by  military  authority. 

A  draft  riot  occurred  at  Port  Washington,  Ozaukee 
County,  November  10th  following  and  one  Kemp  was  ar- 
rested by  the  special  provost  marshal  of  the  state  for  par- 
ticipation in  the  riot  and  turned  over  to  Gen.  W.  L.  Elliott, 
who  kept  him  imprisoned  at  Camp  Randall  in  the  city  of 
Madison.  A  writ  of  habeas  corpus  was  sued  out  of  the 
Supreme  Court  December  4,  1862,  and  General  Elliott  de- 
clined to  produce  the  body  of  Kemp  before  the  Court,  but 
made  a  return  setting  up  the  facts  of  the  arrest  and  justify- 
ing the  imprisonment  under  the  proclamation  of  the  Presi- 
dent suspending  the  writ  of  habeas  corpus.  This  brought 
the  question  squarely  up  for  decision.  Edward  G.  Ryan  ap- 
peared and  made  an  elaborate  argument  in  support  of  the 
petitioner  to  the  writ  and  there  was  no  appearance  upon  the 
other  side. 

There  can  be  no  doubt  that  the  case  attracted  the  attention 
of  the  federal  government  and  of  the  people  at  large ;  at 
last  the  question  had  emerged  from  the  academic  field  and 


1 92  The  Story  of  a  Great  Court 

had  come  before  a  court  which  had  already  shown  itself  un- 
afraid of  a  conflict  with  federal  authority.  Still  it  was  a 
court  of  high  standing  for  ability  and  composed  entirely  of 
Republicans  who  certainly  would  not  desire  to  embarrass  a 
Republican  administration  or  give  aid  and  comfort  to  its 
critics.  If  its  decision  should  be  adverse  to  the  alleged  right 
of  the  President  to  suspend  the  writ,  the  opponents  of  the 
President  would  consider  themselves  justified  in  their  ar- 
raignment of  him  as  a  lawbreaker. 

That  the  case  was  given  earnest  consideration  befitting  its 
importance  there  can  be  no  doubt.  On  the  13th  day  of 
January,  1863,  a  decision  was  rendered  holding  that  the 
President  had  no  power  to  suspend  the  issuance  of  the  writ 
in  places  where  war  did  not  actually  exist  and  that  such 
power  was  vested  solely  in  Congress.  Each  of  the  justices 
wrote  an  opinion  and  all  concurred  in  the  result.2 

Chief  Justice  Dixon  summed  up  the  matter  in  the  leading 

opinion  in  these  words : 

"And  first,  I  think  the  president  has  no  power,  in  the  sense  of 
the  ninth  section  of  the  first  article  of  the  constitution  of  the 
United  States,  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus.  It  is,  in  my  judgment,  a  legislative  and  not  an  executive 
act;  and  the  power  is  vested  in  congress.  Upon  this  question  it 
seems  to  me  that  the  reasoning  of  Chief  Justice  Taney  in  Ex 
parte  Merriman  is  unanswerable." 

Judge  Paine's  opinion  was  more  elaborate  but  reached  the 
same  conclusion.  In  characteristic  language  Judge  Paine 
answered  the  claim  that  the  act  of  the  President  should  be 
sustained  as  a  necessity  of  the  war  power,  as  follows : 

"All  acknowledge  the  terrible  necessities  of  the  war  power; 
but  the  more  terrible  those  necessities,  the  stronger  is  the  argu- 
ment for  confining  them  strictly  to  the  field  of  conflict.  Within 
those  limits  let  the  war  power  rage,  controlled  by  nothing  but 
the  laws  of  war.     But  outside  of  them  let  the  constitution,  with 


2  In  Re  Kemp,  16  Wis.  *359. 


The  Clash  with  President  Lincoln  1 93 

all  its  safeguards,  remain  undisturbed.  Let  it  stand,  like  the 
cities  of  refuge  or  the  temples  of  the  gods,  a  shield  against  il- 
legal violence,  even  to  the  guiltiest  traitor  that  ever  raised  his 
sacriligious  hand  against  it." 

That  the  conclusion  reached  was  unwelcome  to  the  Court 
is  very  clearly  evidenced  by  the  following  language  of  Chief 
Justice  Dixon  at  the  close  of  his  opinion : 

"These  I  believe  to  be  the  real  questions  presented:  and  in 
stating  my  convictions  of  the  law,  I  desire  to  add  that  they  are 
given  without  the  slightest  disrespect  to  the  president,  who  has 
in  all  his  actions,  been  governed  by  the  highest  motives  of  pa- 
triotism, public  honor,  and  fidelity  to  the  constitution  and  laws. 
Penned  at  the  gloomiest  period  of  our  public  misfortunes,  when 
over  fifty  thousand  of  the  noblest  of  the  land,  answering  the 
summons,  had  fallen  a  sacrifice  to  the  cause  of  our  nationality, 
when  one  division  of  the  army  of  the  Union,  already  most  sadly 
repulsed,  was  threatened  with  complete  overthrow  by  superior, 
almost  irresistible  numbers,  and  another,  broken  and  wavering, 
was  retiring  before  the  restless  and  implacable  foe — when  the 
only  way  to  national  life,  honor  and  peace,  lay  through  the  fire 
and  blood  of  battle — and  when,  in  response  to  a  recent  call  for 
additional  forces,  instead  of  the  utmost  loyalty  and  patriotism 
on  the  part  of  every  citizen  of  the  loyal  states,  each  asking  where 
he  could  be  most  useful,  or  how  he  could  best  promote  the  wel- 
fare and  safety  of  his  country,  there  was  reason  to  apprehend, 
in  some  quarters,  factious  and  disloyal  opposition — the  proclama- 
tion in  question  is  not  a  welcome  subject  of  criticism.  As  not 
unfrequently  happens  in  the  affairs  of  war,  it  is  easier,  some- 
times most  painfully  so,  with  time  for  deliberation,  to  point  out 
mistakes  after  they  are  committed,  than  to  see  and  avoid  them 
amid  the  difficulties  and  dangers  by  which  the  military  com- 
mander is  at  the  moment  surrounded.  If,  under  these  circum- 
stances of  national  and  executive  embarrassment,  the  president 
has  transcended  his  lawful  authority,  he  has  committed  an  unin- 
tentional error,  which  he  will  be  the  first  to  repair,  and  the  last 
to  vindicate.  My  duty,  however,  compels  me  to  judge  his  acts, 
not  by  his  intentions,  but  by  the  constitution  and  laws,  giving  a 
fair  and  reasonable  scope  to  all  the  powers  which  they  confer 
upon  him." 

The  effect  of  this  decision  coming  from  a  court  of  recog- 
nized   ability    and    unquestioned    loyalty    was    immediate. 
13 


1 94  The  Story  of  a  Great  Court 

Party  leaders  saw  at  once  that  there  must  be  action  by  Con- 
gress which  should  relieve  the  President  of  the  charge  of 
lawbreaking  which  could  now  be  made  with  far  greater  force 
than  ever  before.  On  the  third  of  March,  1863,  less  than 
sixty  days  after  the  decision  in  the  Kemp  case,  Congress 
passed  an  act  providing  that  the  President  during  the  ex- 
isting rebellion  wherever  in  his  opinion  the  public  safety  re- 
quired it,  might  suspend  the  writ  in  any  case,  and  that  when 
he  did  so  no  military  or  other  officer  should  be  compelled 
upon  habeas  corpus  proceedings  to  produce  the  body  of  any 
person  held  by  authority  of  the  President,  but  upon  cer- 
tificate showing  that  the  detention  was  by  order  of  the  Presi- 
dent the  proceedings  under  the  writ  should  be  suspended  as 
long  as  the  suspension  by  the  President  should  remain  in 
force  and  the  rebellion  continue.  Under  the  provisions  of 
this  act  President  Lincoln  issued  a  proclamation  September 
15,  1863,  suspending  the  privilege  of  the  writ  in  cases  where 
persons  were  held  under  the  command  of  the  government 
as  prisoners  or  as  soldiers. 

Upon  its  face  the  act  seems  pretty  clearly  to  be  simply 
a  delegation  of  legislative  power.  The  language  is  that  the 
President  "is  authorized  to  suspend  the  privilege  of  the 
writ,"  not  that  the  privilege  of  the  writ  is  or  shall  be  sus- 
pended in  cases  in  which  the  President  shall  determine  that 
proper  occasion  exists  therefor. 

The  validity  of  this  act  came  before  the  Court  in  the 
January  term,  1864,  in  the  case  of  Oliver  3  where  a  writ  of 
habeas  corpus  was  sued  out  by  a  father  on  behalf  of  his 
minor  son  who  had  enlisted  in  the  army  while  under  the  age 
of  eighteen  and  hence  in  violation  of  the  law  of  Congress 
on  the  subject.     The  sole  question  in  the  case  was  whether 


3  In  Re  Oliver,  17  Wis.  *681. 


The  Clash  with  President  Lincoln  1 95 

the  privilege  of  the  writ  was  legally  suspended  by  the  act 
and  proclamation,  for  it  was  certain  that  the  detention  was 
illegal  because  the  minor  was  less  than  eighteen  years  of 
age.4  The  application  was  made  by  Silas  U.  Pinney  on 
behalf  of  the  petitioner  and  it  may  be  assumed  that  it  was 
presented  with  ability  and  learning.  The  writ  was  denied 
in  an  opinion  by  Judge  Paine,  but  not  without  much  diffi- 
culty as  to  the  proper  construction  of  the  act.  He  acknowl- 
edges very  serious  doubts  as  to  whether  the  law  is  not 
merely  a  delegation  of  legislative  power  to  the  President,  but 
he  finally  concludes  that  it  may  properly  be  construed  as 
a  suspension  by  the  legislature  with  power  to  the  executive 
to  determine  the  proper  occasion,  in  other  words,  a  legisla- 
tive suspension  which  took  effect  only  upon  the  ascertain- 
ment of  the  facts  by  the  President. 

The  conclusion  was  certainly  a  difficult  one  to  reach  in 
face  of  the  language  of  the  act  and  it  will  be  interesting  to 
note  Judge  Paine's  language,  for  it  must  be  admitted  that  he 
had  a  singular  ability  for  expressing  in  accurate  and  felicit- 
ous language  a  delicate  distinction.  He  says,  after  quoting 
the  language  of  the  first  section  of  the  act : 

"Upon  this  language  and  that  of  the  remainder  of  the  section, 
which  is  of  a  similar  character,  I  doubted  whether  the  act  could 
be  sustained.  But  a  law  must  not  be  judged  by  its  artificial  struc- 
ture merely,  but  according  to  its  substance  and  effect.  And  I 
have  finally  come  to  the  conclusion  that  although  this  act  pro- 
fesses to  confer  on  the  president  authority  to  suspend  the  privi- 
lege of  the  writ,  whenever  in  his  judgment  the  public  safety 
should  require  it  during  the  present  rebellion,  yet  that  is  itself 
an  expression  of  the  legislative  judgment  that  the  time  has  al- 
ready arrived  when  the  public  safety  requires  the  legislature  to 
provide  for  a  suspension,  and  that  it  does  provide  for  a  suspen- 
sion, not  absolute,  but  to  take  effect  according  to  the  judgment 
of  the  president  whether  the  authority  conferred  should  be  exer- 
cised in  particular  cases  or  not.     Suppose  that  instead  of  being 

*  In  Re  Higgins,  16  Wis.  *351. 


1 96  The  Story  of  a  Great  Court 

in  its  present  form,  this  act  had  expressly  declared  that  the  pub- 
lic, safety  required  provision  to  be  made  for  a  suspension  of  the 
privilege,  and  had  then  provided  that  during  the  present  rebel- 
lion the  writ  should  be  suspended  in  all  cases  in  which  the  presi- 
dent might  elect  to  have  himself  and  his  subordinates  relieved 
from  the  duty  of  obeying  the  writ.  I  think  if  such  had  been  its 
form  it  could  fairly  have  been  sustained  within  the  reasoning  of 
the  cases  cited.  The  legislature  would  then  have  exercised  its 
own  function  of  determining  that  the  emergency  had  arisen, 
requiring  the  privilege  to  be  suspended,  and  would  have  made 
general  provision  for  it,  leaving  the  president,  however,  a  dis- 
cretionary power  about  using  the  authority  conferred  in  particu- 
lar cases.  Such  a  power  may  be  confided  to  him.  And  although 
the  language  of  the  act  as  it  now  is  affords  stronger  ground  for 
a  mere  verbal  argument  that  it  was  an  attempt  to  transfer  the 
entire  legislative  function  to  the  executive,  its  real  substance  and 
effect  are  the  same  as  they  would  have  been  in  the  form  sup- 
posed. The  law  itself  suspends  the  right  in  those  cases  where 
the  president,  in  the  exercise  of  the  discretion  conferred  upon 
him,  elects  to  have  it  suspended." 

Another  question  of  vital  importance  in  connection  with 
the  prosecution  of  the  war  came  before  the  Court  imme- 
diately after  the  Kemp  case,  namely,  the  question  as  to  the 
validity  of  the  draft  laws.  As  early  as  the  summer  of  1862 
the  great  wave  of  patriotic  feeling  which  swept  over  the 
north  when  the  first  guns  were  fired  upon  Fort  Sumpter  had 
receded.  Discouragement  at  the  slow  progress  of  the  war 
had  taken  the  place  of  the  confidence  which  reigned  at  its 
beginning  and  voluntary  enlistments  had  practically  ceased ; 
and  this,  too,  at  a  time  when  it  had  become  obvious  to  all 
that  an  army  far  exceeding  in  size  any  army  which  had 
previously  been  contemplated  must  be  put  in  the  field  if 
the  war  was  to  be  successful. 

By  an  act  of  Congress  passed  February  28,  1795,  the 
President  was  authorized  to  call  forth  the  militia  of  the 
states  to  repel  invasions  or  suppress  insurrections  and  this 
law  had  been  construed  as  vesting  the  power  in  the  Presi- 
dent to  conclusively  decide  when  the  exigencies  named  in 


The  Clash  with  President  Lincoln  197 

the  law  existed.5  In  order  to  render  this  law  more  effective 
Congress  passed  an  amendatory  act  July  17,  1862,  providing 
that  whenever  the  President  should  call  forth  the  militia  he 
might  fix  their  period  of  service,  not  exceeding  nine  months, 
and  that  "if  by  reason  of  defects  in  existing  laws  or  in  the 
execution  of  them  in  the  several  states  or  any  of  them  it 
shall  be  found  necessary  to  provide  for  enrolling  the  militia 
and  otherwise  putting  this  act  in  execution,  the  President  is 
authorized  in  such  cases  to  make  all  necessary  rules  and 
regulations." 

In  the  summer  of  1862  the  President  called  upon  the  states 
to  furnish  several  hundred  thousand  additional  soldiers  and 
promulgated  rules  and  regulations  for  the  making  of  drafts 
for  the  militia  in  the  various  states,  which  formed  a  complete 
scheme  governing  the  whole  subject.  These  rules  were 
put  in  force  in  Wisconsin  and  in  the  states  generally  and 
several  residents  of  Manitowoc  County  being  drafted  and 
taken  into  custody  as  militia  men  brought  habeas  corpus 
proceedings  to  secure  their  release.6 

The  claim  was  that  the  act  of  1862  was  unconstitutional 
because  it  was  an  attempt  on  the  part  of  Congress  to  dele- 
gate its  legislative  power  upon  the  subject  of  detaching 
drafting  and  calling  forth  the  militia  to  the  President.  This 
contention  was  rejected  by  the  Court  and  it  was  held  in  an 
opinion  by  Judge  Cole  that  the  making  of  rules  for  the  en- 
rolling and  detaching  of  the  militia  were  largely  ministerial 
acts  which  might  properly  be  performed  by  the  chief  ex- 
ecutive. 

At  the  same  time  it  was  held  that  a  resident  alien  who 
had  declared  his  intention  to  become  a  citizen  of  the  United 


b  Martin  v.  Mott,  12  Wheaton,  19. 
*  In  Re  Griner,  16  Wis.  *423. 


1 98  The  Story  of  a  Great  Court 

States,  though  not  in  fact  a  citizen  of  the  United  States,  was 
liable  to  be  drafted  into  the  military  service  of  the  United 
States  because  he  had  become  a  citizen  of  this  state  by 
virtue  of  his  declaration  of  intention.7 

The  legislative  session  of  1861  came  to  its  end  just  as  the 
war  opened.  On  the  thirteenth  of  April  an  act  was  passed 
authorizing  the  Governor,  in  case  of  a  call  for  troops  by 
the  President,  to  take  all  necessary  steps  in  organizing  vol- 
unteers to  meet  the  call  and  appropriating  $100,000  for  the 
purpose ;  the  act  also  authorized  the  Governor  to  issue  state 
bonds  to  the  amount  of  $100,000  for  the  same  purpose.8 

Three  days  later  this  act  was  amended  by  raising  the 
amount  of  the  cash  appropriation  to  $200,000  and  making 
the  same  raise  in  the  amount  of  the  authorized  bond  issue. 
After  making  these  preparations  for  the  war  which  had 
already  begun  the  legislature  adjourned.  It  soon  became 
evident,  however,  that  millions  rather  than  hundreds  of 
thousands  would  be  required  for  the  suppression  of  the  re- 
bellion and  the  Governor  reconvened  the  legislature  in  spe- 
cial session  May  15,  1861. 

At  this  session  a  number  of  war  measures  designed  to 
meet  the  existing  situation  were  passed.  Among  these  were 
an  act  authorizing  municipal  corporations  to  raise  money 
by  taxation  for  the  support  of  the  families  of  volunteers,9 
an  act  providing  for  the  raising  of  not  exceeding  six  regi- 
ments of  infantry  for  active  duty,  with  a  reserve  of  two 
regiments,  and  appropriating  one  million  dollars  therefor/0 
an  act  prohibiting  the  rendering  of  aid  to  the  rebellion  and 


1  In  Re  Wehlitz,  16  Wis.  *443. 

s  Chap.  239,  Genl.  Laws,  1861. 

»  Chap.  2,  Laws  1861,  Spec.  Session. 

10  Chap.  4,  Laws  1861,  Spec.  Session. 


The  Clash  with  President  Lincoln  1 99 

directing  the  seizure  of  arms  or  munitions  of  war  intended 
for  use  by  the  rebels,11  an  act  appropriating  $50,000  for  the 
purpose  of  arms  and  accoutrements  of  war,12  also  an  act 
adding  five  dollars  per  month  to  the  pay  of  all  volunteers 
having  dependent  families.13 

The  most  important  act  of  the  session,  however,  was 
Chapter  13,  which  authorized  the  Governor,  Treasurer  and 
Secretary  of  State  to  issue  bonds  and  borrow  money  on  the 
credit  of  the  state  to  an  amount  not  exceeding  one  million 
dollars.  As  the  state  could  only  borrow  this  amount  of 
money  "to  repel  invasion,  suppress  insurrection,  or  defend 
the  state  in  time  of  war"  14  it  was  very  evident  that  the 
validity  of  any  bond  issue  would  be  seriously  questioned,  for 
the  state  itself  was  not  even  remotely  threatened  with  in- 
vasion nor  was  there  any  insurrection  within  its  limits. 

In  this  dilemma,  Governor  Randall  appealed  to  the  jus- 
tices of  the  Supreme  Court  to  give  an  opinion  upon  the 
validity  of  the  bonds  in  advance.  It  is  certain  that  the 
justices  had  no  power  to  give  any  such  opinion.  Some 
courts  of  last  resort  are  endowed  with  such  powers  and 
authorized  or  required  to  render  opinions  to  the  executive 
department  as  to  the  constitutionality  of  legislative  action 
in  advance  of  any  controversy,  but  such  power  has  never 
been  given  to  the  Supreme  Court  of  Wisconsin.  Any 
opinion  which  the  justices  might  give,  therefore,  was  not 
only  coram  non  judice  but  absolutely  unauthorized  and  im- 
proper. Courts  have  no  power  to  decide  questions  in  ad- 
vance of  a  real  controversy  unless  the  power  be  given  them 
by  legislative  act. 


11  Chap.  5,  Laws  1861,  Spec.  Session. 

12  Chap.  6,  Laws  1861,  Spec.  Session. 
"Chap.  8,  Laws  1861,  Spec.  Session. 

11  Const.  Wis.  Art.  VIII,  Sees.  4,  6,  7  and  10. 


200  The  Story  of  a  Great  Court 

But  the  emergency  was  to  the  last  degree  grave.  If  any 
situation  could  justify  the  doing  of  an  unauthorized  act  by 
the  justices  this  was  the  situation.  Unless  money  loaners 
could  be  satisfied  that  the  bonds  were  valid  they  would  give 
little  for  them  and  the  governor's  arm  would  be  well-nigh 
paralyzed. 

In  this  situation  Chief  Justice  Dixon  and  Associate  Jus- 
tice Cole  sent  the  following  joint  letter  to  the  Governor  in 
response  to  his  anxious  inquiry. 

"STATE  OF  WISCONSIN,  SUPREME  COURT, 

"Clerk's  Office,  Madison,  June  5th,  1861. 
"His  Excellency  Alex.  W.  Randall, 
Governor  of  Wisconsin, 

"Sir: — We  are  in  receipt  of  your  communication  of  the  4th 
inbt  asking  our  opinion  as  to  the  constitutionality  of  chapter  239 
of  the  general  laws  of  1861,  entitled  'an  act  to  provide  for  the  de- 
fense of  the  state  and  to  aid  in  enforcing  the  laws  and  maintain- 
ing the  authority  of  the  federal  government,'  and  chapter  13  of 
the  extra  session  held  in  May,  1861,  entitled  'an  act  to  provide 
for  borrowing  money  to  repel  invasion,  suppress  insurrection  and 
defend  the  state  in  time  of  war,'  and  as  to  whether  bonds,  issued 
under  the  above  acts  and  in  conformity  to  their  provisions,  would 
be  valid  and  binding  against  the  state. 

"Your  excellency  is  pleased  to  intimate  that  it  has  become  a 
necessity  in  the  present  exigencies  of  the  state  and  country  to 
appeal  to  us  for  an  opinion  upon  the  above  question.  Yielding 
to  this  emergency,  we  have  felt  it  to  be  our  duty  to  give  you  our 
opinion  upon  the  question  suggested  in  your  communication,  and 
we  would  therefore  state  that  we  have  considered  the  above  men- 
tioned laws,  and  from  the  examination  we  have  given  them  we 
entertain  no  doubt  as  to  their  constitutionality,  and  we  are  of 
the  opinion  that  the  bonds  issued  in  conformity  to  their  provi- 
sions will  be  valid  and  binding  upon  the  state  of  Wisconsin. 
"Respectfully  yours, 

"Lutiier  S.  Dixon,  Chief  Justice, 
"O.  Coi,e,  Associate  Justice. 

"P.  S.  Mr.  Justice  Paine  is  at  present  in  Milwaukee  and  has 
had  no  opportunity  of  acting  upon  the  subject  matter  of  your 
communication. 

"O.  Cole." 


The  Clash  with  President  Lincoln  201 

By  the  aid  of  this  decision,  rendered  in  advance,  the 
bonds  were  negotiated  and  none  ever  had  the  hardihood  to 
contest  their  validity. 

The  last  act  passed  by  the  legislature  of  1861  at  its  reg- 
ular session  (Chapter  309)  was  an  act  exempting  from  civil 
process  all  volunteers  in  the  military  service  of  the  United 
States,  and  suspending  all  legal  proceedings  against  such 
volunteers  as  long  as  their  service  continued.  This  act  was 
somewhat  amended  by  Chapter  7  of  the  laws  passed  at  the 
extra  session  of  1861  and  its  constitutionality  challenged  in 
several  cases  which  came  before  the  Court  at  the  June  term, 
1862.15  It  was  held  unconstitutional  as  impairing  the  obli- 
gation of  contracts  in  a  brief  opinion  by  Judge  Cole.  The 
ground  of  the  decision  was  that  the  law  took  away  all 
remedy  for  the  breach  of  the  contract  for  an  indefinite 
period  and  that  the  taking  away  of  all  remedy  was  in  effect 
the  destruction  of  the  obligation  of  the  contract  itself. 
From  this  conclusion  Judge  Paine  dissented,  but  filed  no 
opinion. 


15  Hasbrouck  v.  Shipman,  16  Wis.  *296. 


202  The  Story  of  a  Great  Court 

CHAPTER  XVI 

CHIEF    JUSTICE    DIXON'S    SECOND    CAMPAIGN 

Chief  Justice  Dixon's  term  was  to  expire  in  January, 
1864,  and  the  election  of  his  successor  was  to  take  place 
in  the  preceding  April.  The  state  rights  issue,  which  all 
but  defeated  him  in  i860,  was  practically  dead.  Except  for 
a  few  irreconcilables,  the  Republicans  had  become  satisfied 
that  there  was  no  room  in  their  party  for  such  a  doctrine. 
The  secession  of  the  southern  states  was  but  the  practical 
application  of  the  doctrine  of  defiance  of  federal  authority 
which  the  Booth  case  inculcated  and  the  object  lesson  thus 
afforded  was  sufficient.  Then,  too,  the  Chief  Justice  had 
fully  demonstrated  his  great  abilities  in  the  meantime  and 
the  state  had  come  to  know  him  and  feel  proud  of  him.  He 
had  been  elected  largely  by  Democratic  votes  in  i860  and 
there  seemed  to  be  no  good  reason  why  the  Democrats 
should  not  support  him  again.  Many  of  them  in  fact  de- 
sired to  do  so  and  thus  it  seemed  quite  probable  that  he 
might  be  elected  without  opposition.  He  was  to  meet  a 
very  bitter  fight,  however,  and  in  order  to  understand  the 
reasons  for  this  it  is  necessary  to  take  a  brief  glance  at 
the  political  situation  in  the  fall  of  1862  and  prior  thereto. 

The  wave  of  patriotic  feeling  which  swept  over  the  north 
when  the  guns  of  South  Carolina  were  turned  on  Fort 
Sumpter  in  1861  wrought  havoc  with  the  Democratic  party. 
Many  of  its  best  members  felt  that  there  was  not  room  in 
the  north  for  two  parties,  but  that  all  should  unite  in  sup- 
port of  the  administration  and  that  the  only  practicable  way 


Dixon's  Second  Campaign  203 

to  do  so  was  to  vote  the  Republican  ticket.  In  order  to 
welcome  and  encourage  these  voters,  the  Republicans  soon 
began  to  call  their  party  the  Union  party,  or  the  Republican 
— Union  party.  The  great  mass  of  the  Democrats,  how- 
ever, felt  averse  to  leaving  the  historic  party  whose  achieve- 
ments they  remembered  with  pride  and  also  felt  that  it 
was  wise  that  there  should  be  two  parties.  The  great  ma- 
jority of  these  men  were  just  as  patriotic,  just  as  willing 
to  make  sacrifices  for  the  preservation  of  the  Union,  and 
just  as  earnest  supporters  of  the  war  for  the  Union  as  the 
mass  of  the  Republicans.  They  and  their  sons  went  to  the 
war  by  thousands  and  tens  of  thousands.  Indeed  the  civil 
war  could  hardly  have  been  brought  to  a  successful  close 
had  it  been  otherwise.  The  writer  was  a  youth  of  nine 
years  when  the  civil  war  broke  out,  but  he  remembers  those 
days  most  vividly.  His  father,  Horatio  Gates  Winslow,  was 
one  of  the  "War  Democrats"  at  Racine,  who  ever  main- 
tained his  membership  in  the  party,  but  whose  hand,  voice 
and  pen  were  ever  at  the  service  of  the  Union  cause.  Phys- 
ically unable  to  enter  military  service  himself,  his  place  of 
business  was  the  headquarters  for  patriotic  activities  of  all 
kinds.  No  war  meeting  was  complete  without  his  presence, 
and  no  movement  in  aid  of  the  prosecution  of  the  war  lacked 
his  help.  There  were  very  many  such.  Scant  justice  has 
been  done  to  these  men  by  the  historians  generally. 

But  notwithstanding  the  great  preponderance  of  patriotic 
voters  in  the  Democratic  party,  it  was  at  the  same  time  in 
some  sense  an  opposition  party  and  naturally,  if  not  neces- 
sarily, the  faultfinders,  the  dissatisfied,  the  believers  in  the 
ultra  state  rights  doctrines  all  arrayed  themselves  under 
its  banners. 


204  The  Story  of  a  Great  Court 

As  the  year  1862  wore  on  without  any  decisive  successes 
for  the  Union  arms,  but  rather  with  discouragement  and 
disaster,  enthusiasm  waned  very  perceptibly  at  the  north 
and  the  faultfinders  multiplied.  Some  found  fault  with  the 
lack  of  vigor  in  the  prosecution  of  the  war ;  some  with  its 
too  vigorous  prosecution ;  some  found  fault  with  the  ar- 
bitrary arrests  found  necessary  by  the  President,  and  some 
with  the  leniency  of  the  government  in  its  treatment  of 
suspected  persons ;  some  complained  because  the  negroes 
had  not  been  emancipated  and  some  because  they  thought 
the  war  was  being  turned  into  an  abolition  crusade.  All 
of  this  dissatisfaction  tended  directly  to  weaken  the  Repub- 
licans and  strengthen  the  Democrats.  Not  that  all  of  the 
dissatisfied  Republicans  joined  the  Democratic  party  by  any 
means,  but  many  did  so  and  many  more  became  lukewarm 
and  staid  away  from  the  polls  at  election  time.  It  was  a 
time  of  dissatisfaction,  doubt  and  discouragement.  Three 
hundred  thousand  more  soldiers  were  called  for  by  the 
President ;  the  taking  of  Richmond  seemed  further  off  than 
ever  before  and  early  in  September  Lee  crossed  the  Potomac 
and  the  bloody  battle  of  Antietam  was  fought,  leaving  the 
Union  army  in  possession  of  the  field,  but  too  exhausted  to 
pursue  the  foe  or  interfere  with  his  orderly  retreat. 

Under  these  circumstances,  discouraging  indeed  to  Re- 
publican prospects,  the  congressional  elections  of  1862  ap- 
proached. No  state  ticket  was  to  be  elected  in  Wisconsin, 
consequently  no  state  convention  would  ordinarily  have 
been  called ;  but  legislative  and  county  officers  were  to  be 
elected  and  early  in  August  the  Democratic  party  leaders, 
deeming  that  an  advantage  might  be  gained  by  placing  an 
address  before  the  people  issued  a  call  for  a  convention,  to 


Dixon's  Second  Campaign  205 

be  held  in  Milwaukee  in  September,  which  call  is  inserted 
here  at  length,  in  order  to  show  the  gravity  of  the  situation 
as  seen  through  Democratic  eyes: 

"The  State  Centra!  Committee  of  the  Democratic  party  of  the 
state  of  Wisconsin,  after  consultation  with  many  Democrats  from 
various  parts  of  the  state,  have  concluded  to  call  and  now  do 
hereby  call  a  state  convention  of  the  Democracy  to  meet  at  Mil- 
waukee on  the  3rd  of  September  next  at  noon. 

"It  is  considered  fitting  that  the  only  national  and  historical 
party  now  left  in  the  country  should  give  solemn  expression  to 
their  views  on  the  present  perilous  condition  of  constitutional 
government,  the  fearful  civil  war  in  which  the  nation  is  now 
engaged,  the  danger  of  a  final  and  utter  destruction  of  the  Union 
established  by  the  sacrifices  and  wisdom  of  our  fathers  and  the 
constitutional  means  necessary  to  secure  to  the  future  the  bless- 
iDgs  of  the  past.  The  Democratic  party,  always  loyal,  always 
true  to  the  constitution,  and  now  as  ever  determined  to  maintain 
the-  government  under  it,  has,  at  this  time  and  this  hour  when 
the  Union  is  in  such  imminent  peril,  and  constitutional  liberty 
on  the  American  continent  threatened  with  destruction,  a  most 
solemn  duty  to  perform.  In  view  of  this  duty,  with  unselfish 
patriotism  let  us  meet  and  counsel  together. 

"C.  A.  Eldridge, 
"Chmn.  State  Central  Committee." 

The  convention  was  held  and  was  largely  attended;  it 
resolved  to  issue  an  address  to  the  people,  which  was  pre- 
pared and  submitted  by  Edward  G.  Ryan.  It  has  passed 
into  history  as  the  "Ryan  address."  In  eloquent  periods  it 
reviewed  the  history  and  achievements  of  the  Democratic 
party,  declared  for  the  vigorous  prosecution  of  the  war  and 
the  crushing  of  the  unholy  rebellion,  but  denounced  with 
severitv  various  alleged  infractions  of  constitutional  and 
legal  rights  by  the  President  and  his  party  in  the  suspension 
of  the  writ  of  habeas  corpus,  the  making  of  unlawful  mil- 
itary arrests,  the  transportation  of  persons  accused  of  crime 
to  other  states  for  trial,  the  trials  of  accused  persons  before 
military  tribunals,  the  suppression  of  freedom  of  the  press, 


206  The  Story  of  a  Great  Court 

the  abolition  of  slavery  in  the  District  of  Columbia,  and 
other  violations  of  rights  guaranteed  by  the  constitution.1 

When  this  address  was  presented  to  the  convention  for 
consideration  George  B.  Smith  of  Madison  made  an  elo- 
quent speech,  in  which,  while  approving  of  the  abstract 
principles  stated  in  the  address,  he  argued  against  its  adop- 
tion, because  he  believed  it  unwise,  and  he  proposed  to  sub- 
stitute resolutions  simply  declaring  the  devotion  of  the  party 
to  the  Union  and  the  Constitution,  and  its  readiness  to  make 
all  possible  sacrifices  to  support  the  government  and  de- 
precating any  effort  to  divide  the  people  of  the  north  on 
old  political  issues  until  the  rebellion  was  suppressed  and 
the  authority  of  the  government  restored. 

S.  U.  Pinney  of  Madison  read  to  the  convention  an  elo- 
quent extra  from  a  speech  delivered  by  the  lamented  Doug- 
las in  1861,  in  which  he  recommended  a  cessation  of  party 
strife  until  the  government  was  rescued  from  its  perils ; 
after  reading  the  extract  he  moved  that  it  be  substituted  in 
place  of  the  proposed  address. 

Both  propositions  were  overwhelmingly  rejected  and  the 
address  was  approved  and  sent  forth  broadcast  to  the  peo- 
ple. 

It  is  not  proposed  here  to  discuss  the  merits  or  the  de- 
merits of  this  address.  It  was  called  a  disunion  document 
by  the  Republicans ;  it  was  deprecated  as  a  sort  of  a  fire 
in  the  rear  by  the  War  Democrats.  For  a  year  at  least  it 
was  made  the  test  by  which  the  quality  of  a  man's  Dem- 
ocracy was  to  be  determined  in  Wisconsin.  At  the  state 
convention  held  August  4,  1863,  at  which  Henry  L.  Palmer 
was  nominated  for  Governor,  it  was  re-adopted  and  ap- 
proved.    Soon  after  this,  however,  a  public  protest  came. 


1  Madison  Daily  Patriot,  Sept.  6,  1862. 


Dixon's  Second  Campaign  207 

On  the  20th  of  August  a  preliminary  meeting  of  War  Dem- 
ocrats was  held  in  Milwaukee  and  a  convention  of  War 
Democrats  was  called  to  meet  at  Janesville,  September  17th 
following.  This  convention  was  attended  by  such  men  as 
Arthur  McArthur,  J.  E.  Arnold,  Matt  H.  Carpenter,  Wm. 
C.  Allen,  Edward  S.  Bragg,  A.  Hyatt  Smith,  Geo.  H. 
Walker,  J.  J.  Tallmadge,  C.  D.  Robinson,  and  many  others 
who  up  to  this  time  had  been  loyal  Democrats,  and  it 
enthusiastically  passed  resolutions  and  issued  an  address  to 
the  people,  pledging  hearty  support  to  the  war  and  demand- 
ing its  most  vigorous  prosecution,  and  repudiating  the  Dem- 
ocratic platform  and  the  Ryan  address.  The  Democratic 
Bourbons  were  in  the  saddle,  however,  and  remained  there 
and  succeeded  in  driving  many  of  the  War  Democrats  into 
the  Republican  party. 

The  address  certainly  did  no  good  to  the  Democratic 
cause  in  the  state,  however  sound  its  legal  propositions 
were.  The  great  majority  of  voters,  both  Republican  and 
Democratic,  felt  that  when  the  existence  of  the  Union  was 
at  stake  it  was  no  time  to  discuss  abstract  legal  propositions. 
Especially  when  the  very  fact  of  such  discussion  was  hailed 
by  the  enemy  as  a  sign  of  serious  division  at  the  north  and 
an  encouragement  to  continued  resistance  to  the  federal 
arms. 

Notwithstanding  the  fact  that  the  address  probably  alien- 
ated more  votes  than  it  attracted,  the  election  in  November, 
1862,  reflected  very  clearly  the  prevailing  feeling  of  dis- 
satisfaction with  the  administration.  The  legislature  at  an 
extra  session  in  September,  1862,  had  passed  a  law  enabling 
soldiers  to  vote  while  in  the  field,  under  the  supervision  of 
military  officers,2  but  even  with  this  advantage    (for  the 


2  Chap.  11,  extra  session  1862,  bound  in  volume  for  1863. 


208  The  Story  of  a  Great  Court 

great  majority  of  the  soldiers  in  the  field,  whether  Repub- 
licans or  Democrats  at  home,  naturally  voted  the  Repub- 
lican or  Union  ticket,  because  they  were  so  deeply  impressed 
with  the  necessity  of  supporting  the  administration)  the 
general  election  of  1862  resulted  in  a  practical  Democratic 
victory.  Three  out  of  the  six  Congressmen  elected  were 
Democrats  and  the  Democratic  county  tickets  were  success- 
ful in  many  counties,  while  the  legislature,  though  repub- 
lican in  both  branches,  was  only  so  by  very  small  margins. 

But  encouraging  as  the  local  result  was  to  the  Democratic 
politicians,  the  results  in  the  great  middle  states  of  the 
North  were  far  more  encouraging.  New  York,  Ohio,  In- 
diana, and  Illinois  were  swept  by  the  party  and  the  ma- 
jority of  the  new  House  of  Representatives  were  also  Dem- 
ocrats. 

It  seemed  to  the  leaders  of  the  party  that  the  reaction 
from  Republicanism  had  come  and  thus  the  approaching 
election  for  Chief  Justice  of  the  Supreme  Court  was  viewed 
by  many  of  them  seriously  as  an  opportunity  for  regaining 
party  prestige  and  placing  a  representative  of  the  party 
upon  a  bench  where  it  had  had  no  representative  for  years. 
The  principle  of  non-partisanship  in  judicial  elections  had 
as  yet  obtained  no  very  serious  hold  upon  the  people,  es- 
pecially in  the  estimation  of  a  party  which  deemed  itself  in 
the  majority. 

On  the  26th  day  of  January,  1863,  Charles  A.  Eldridge 
of  Fond  du  Lac,  Chairman  of  the  Democratic  state  central 
committee,  issued  a  formal  call  for  a  Democratic  convention, 
to  be  held  at  Madison  on  the  25th  day  of  February  "for  the 
purpose  of  nominating  a  candidate  for  Chief  Justice  of  the 
Supreme  Court,  to  be  supported  by  the  Democracy  at  the 
coming  election." 


Dixon's  Second  Campaign  209 

A  few  days  before  the  assembling  of  the  convention  and 
on  the  13th  of  January,  1863,  the  decision  of  the  Supreme 
Court  in  the  Kemp  case  before  mentioned  3  holding  that  the 
President  had  no  power  to  suspend  the  operation  of  the 
writ  of  habeas  corpus,  was  announced  and  was  hailed  by  the 
Democracy  generally  as  a  vindication  of  the  doctrines  of 
the  Ryan  address.  About  one  hundred  delegates  attended 
the  convention  (the  number  of  votes  cast  would  indicate  an 
attendance  of  over  one  hundred  and  sixty,  but  this  results 
from  the  fact  that  many  delegates  were  empowered  to  cast 
two  votes),  and  ex-Governor  Nelson  Dewey  was  elected 
chairman  with  Edward  G.  Ryan  chairman  of  the  committee 
on  resolutions. 

An  informal  ballot  being  taken,  John  W.  Cary  of  Mil- 
waukee received  32  votes,  M.  M.  Cothren  30,  M.  A.  Ed- 
wards 23,  E.  Wakely  15  and  the  balance  were  scattering; 
Cary  directed  Ryan  to  withdraw  his  name,  after  doing 
which  Ryan  nominated  Dixon,  extolling  him  as  an  upright 
judge  and  a  true  Democrat  in  principle :  "Dixon,"  said 
Ryan,  "is  a  man  who  does  not  care  for  party  and  is  in  the 
essentials  as  good  and  sound  a  Democrat  as  could  be  found 
in  the  state."  Moses  M.  Strong  arose  and  opposed  the 
endorsement  of  Dixon  and  formally  nominated  M.  M.  Coth- 
ren. Satterlee  Clark  of  Dodge  County  was  skeptical  as  to 
Dixon's  orthodoxy  as  a  Democrat ;  he  wanted  to  know 
whether  he  was  in  favor  of  the  confiscation  and  the  eman- 
cipation proclamations,  and,  if  not,  whether  he  fully  agreed 
with  the  principles  of  the  Ryan  address ;  if  he  did  not  agree 
with  the  address  he  did  not  consider  him  a  Democrat. 
Joshua  La  Due  of  Milwaukee  thought  Dixon  a  good  enough 
Democrat  for  him ;  he  (Dixon)  had  just  rendered  a  decision 


a  In  Re  Kemp,  16  Wis.  *359. 
14 


2 1 0  The  Story  of  a  Great  Court 

upholding  the  federal  constitution  (referring  to  the  Kemp 
case).  The  second  informal  ballot  being  taken,  it  resulted 
as  follows:  Cothren  44,  Dixon  51,  Edmonds  25,  Cary  17 
and  the  balance  scattering.  The  first  formal  ballot  resulted 
as  follows:  Cothren  76,  Dixon  68,  Edmonds  18  and  J.  E. 
Arnold  1 ;  the  second  formal  ballot  nominated  Cothren,  he 
receiving  88  votes  and  Dixon  73.  Thus,  by  a  very  close 
vote,  Dixon  was  rejected.  It  is  evident  that  the  capacity  of 
the  Democratic  party  to  make  mistakes  is  not  a  recent 
acquirement.  The  convention  adopted  a  platform  evidently 
the  work  of  Ryan,  which  is  interesting  as  showing  the  at- 
titude of  the  Ryan  Democrats  at  the  time.  It  is  as  fol- 
lows :  * 

"(1)  Resolved,  that  a  judicial  convention  of  the  Democratic 
party  held  for  the  purpose  of  nominating  their  candidate  for  a 
seat  on  the  bench  of  the  Supreme  Court  of  the  state,  is  not  the 
proper  opportunity  to  enter  into  a  discussion  of  party  differences 
or  party  principles,  and  that  this  is  the  less  necessary  as  the 
political  position  of  the  Democratic  party  in  this  state  is  now 
well  defined  and  settled.  But  that  a  judicial  convention  is  em- 
phatically a  fit  and  appropriate  occasion  to  declare  certain  con- 
stitutional principles  without  assent  to  which  the  Democratic 
party  cannot  consent  to  support  a  judicial  candidate. 

"(2)  Resolved,  that  in  all  things  relating  to  the  state  govern- 
ment the  state  constitution  is  the  supreme  law,  and  that  in  all 
things  relating  to  the  national  government  the  constitution  of 
the  United  States  is  the  supreme  law  of  the  land;  that  there  is 
no  power,  state  or  national,  outside  of  or  inconsistent  with  the 
provisions  of  the  constitution;  that  all  assumption  or  assertion 
of  unconstitutional  power  by  the  state  or  national  government  is 
a  dangerous  and  treasonable  usurpation  which  the  Democracy 
will  not  sanction  or  tolerate. 

"(3)  Resolved,  that  the  government  of  the  United  States  can 
claim  no  powers  not  granted  by  the  constitution  expressly,  or  by 
necessary  implication  as  an  incident  to  powers  expressly  granted; 
that  it  is  a  government  of  delegated  powers,  and  that  the  public 
security  and  the  perpetuation  of  American  liberty  peremptorily 

4  Madison  Daily  Patriot,  Feb.  26,  1863. 


Dixon's  Second  Campaign  21  1 

require  a  strict  construction  of  its  provisions  and  grants;  and 
that  it  is  not  the  spirit  or  duty  of  the  American  people  to  submit 
to  new,  loose  and  dangerous  rules  of  construction  which  tend  to 
subvert  the  safeguards  of  the  government  and  the  rights  of  the 
states  and  people  and  which,  if  unchecked,  will  aid  in  making 
the  great  American  experiment  of  free  constitutional  government 
an  utter  failure  and  all  previous  American  history  a  fable.  That 
it  is  the  peculiar  duty  of  the  Democratic  party  to  support  and 
defend  the  constitution  as  our  forefathers  made  it,  and  as  our 
fathers  and  ourselves  prospered  under  it,  vital  and  sacred  against 
all  usurpations  by  all  persons,  people,  bodies  and  officers.  And 
that  to  this  end  it  is  our  solemn  duty  to  see  that  the  judiciary  is 
so  constituted  that  the  constitutions  of  the  state  and  of  the  Union 
shall  be  safe  in  their  hands,  as  the  holiest  trust  of  the  people  to 
their  servants,  to  be  upheld  and  maintained  without  compromise 
or  exception  against  all  assaults  from  every  source. 

"(4)  Resolved,  that  on  these  principles  we  submit  our  nominee 
for  the  office  of  Chief  Justice  to  the  people  of  this  state  for  their 
suffrages,  fully  believing  that  the  people  will  be  found  true  to 
their  own  liberties  and  duties  in  electing  him  to  that  high  office. 

"(5)  Resolved,  that  the  Democratic  party  of  this  state  utterly 
condemns  all  efforts  by  the  President  and  Congress  to  convert 
the  existing  war  into  an  abolition  crusade,  all  efforts  by  the 
President  and  Congress  to  change  our  old  system  of  government 
into  a  military  despotism,  all  efforts  of  the  President  and  Con- 
gress to  break  down  the  liberties  of  the  people  and  the  gov- 
ernment of  the  states  by  an  overshadowing  government  dif- 
ferent from  the  limited  system  established  by  the  constitu- 
tion, all  efforts  by  the  President  and  Congress  to  take  one 
iota  from  or  add  one  iota  to  the  constitution  as  established 
by  our  fathers;  and  that  we  pledge  our  party  to  a  faithful  sup- 
port of  the  constitution  against  all  who  assail  it,  whether  fanatic 
factions  or  faithless  officers  of  any  and  every  grade  of  authority, 
and  that  we  will  do  this  under  all  denunciations  showered  upon 
us  by  the  faithless  amongst  the  people  and  under  all  persecu- 
tions inflicted  upon  us  by  a  usurping  government." 

While  the  improved  prospects  of  the  Democratic  party  in 
the  state  and  nation  were  doubtless  the  main  reasons  for 
the  rejection  of  Dixon  as  a  candidate  and  the  nomination  of 
a  partisan  Democrat,  there  was  another  consideration  which 
must  have  had  a  considerable,  if  not  a  controlling-,  influence 


2 1 2  The  Story  of  a  Great  Court 

on  the  action  of  the  party  at  this  time,  and  that  was  the 
attitude  of  the  farm  mortgagors  toward  Dixon. 

This  organization  was  still  in  existence  and  still  feared 
by  both  parties.  True,  the  Supreme  Court  had  set  aside  the 
law  which  the  legislature  of  1861  had  passed  for  the  relief 
of  the  mortgagors,5  but  this  had  only  added  fuel  to  the 
flame.  It  was  now  certain  that  Dixon  was  against  them 
and  if  they  could  do  nothing  else  they  could  at  least  defeat 
the  man  who  had  actively  assisted  in  riveting  the  chains  of 
debt  upon  them. 

The  temper  of  the  organization  generally  may  best  be 
ascertained  from  the  columns  of  the  official  organ  before 
mentioned,  the  "Home  League."  In  the  issue  of  February 
16,  1863,  the  Madison  correspondent  of  the  paper  (prob- 
ably the  editor,  A.  M.  Thomson,  in  person)  writes  that  the 
Republicans  had  caucussed  several  times  on  the  subject 
of  the  approaching  judicial  election ;  that  the  brilliant  Matt 
Carpenter  was  the  candidate  of  some  while  the  names  of 
David  Taylor,  O.  H.  Waldo,  David  Noggle  and  John  R. 
Bennett  had  also  been  mentioned;  that  both  parties  were 
embarrassed  by  the  farm  mortgage  question,  neither  de- 
siring to  ignore  it  as  they  were  both  well  satisfied  that  no 
man  would  be  allowed  to  go  on  the  bench  who  was  known 
to  be  openly  hostile  to  that  interest.  The  article  then  pro- 
ceeds as  follows:  "While  it  might  be  imprudent  for  the 
mortgagors  to  insist  that  no  man  but  one  pledged  to  their 
interests  shall  be  elected,  they  have  the  right  to  protest 
against  the  election  of  any  man  who  is  openly  pledged 
against  them.  They  know  their  rights,  and  knowing  dare 
to  maintain  them." 


5  Oatman  v.  Bond,  15  Wis.  *20. 


Dixon's  Second  Campaign  2 1 3 

In  the  issue  of  the  same  paper  of  date  April  4th,  and  on 
the  eve  of  the  judicial  election,  the  editor  in  a  long  editorial 
denounced  Dixon  as  a  Democrat,  as  the  candidate  of  all 
the  lawyers  of  the  state  who  had  farm  mortgages  to  collect, 
also  as  the  candidate  of  the  corporations,  the  railroads,  the 
tax  title  speculators  and  of  all  the  other  interests  of  the 
state  except  its  true  interests.  The  editorial  goes  on  to  say, 
"Before  such  a  judge  the  people  are  always  beaten,  as  wit- 
ness the  action  of  that  court  in  their  notorious  decision  de- 
claring unconstitutional  the  law  taxing  railroads,  the  mo- 
ment one  of  their  actions  squinted  a  little  against  the  specu- 
lator they  made  indecent  haste  to  reverse  it,  though  they 
persisted  that  their  first  decision  was  the  law.  The  judicial 
question  is  surrounded  by  perplexing  embarrassments,  and 
it  is  the  duty,  as  well  as  the  privilege,  of  every  intelligent 
man  to  act  boldly  and  conscientiously  in  the  matter." 

What  sort  of  a  situation  might  have  developed  had  Dixon 
been  nominated  by  the  Democratic  convention  it  is  impos- 
sible now  to  say.  He  had  asked  for  no  indorsement  at  the 
hands  of  any  convention.  Prior  to  the  meeting  of  the 
Democratic  convention  he  had  been  put  in  the  field  as  a 
non-partisan  candidate  by  calls  signed  by  large  numbers  of 
lawyers,  both  Democrats  and  Republicans,  and  these  calls 
he  accepted. 

On   the   day   following   the   Democratic   convention   the 

Republican  legislative  caucus  was  called  together  for  final 

action  on  the  judicial  question,  and  passed  the  following 

resolution : 

"Resolved,  that  we  have  full  confidence  in  the  ability,  upright- 
ness and  impartiality  as  a  judge  of  Hon.  L.  S.  Dixon;  that  In 
the  discharge  of  the  high  and  responsible  duties  of  Chief  Justice 
of  the  Supreme  Court  we  believe  he  has  been  governed  only  by 
an  earnest  and  conscientious  desire  to  administer  justice  under 


2 1  4  The  Story  of  a  Great  Court 

the  constitution  and  the  laws,  and  that  we  have  entire  faith  in 
his  loyalty  and  unswerving  patriotism; 

"Resolved,  that  we  do  not  approve  of  conducting  judicial  elec- 
tions upon  party  issues; 

"Resolved,  that  tbis  caucus  adjourn  without  balloting  for  Chief 
Justice." 

This  seems  like  rather  fainthearted  praise.  Perhaps  it 
was  the  best  course  that  could  have  been  pursued.  It  gave 
to  Dixon  a  quasi-certificate  of  party  approval  which  doubt- 
less counted  with  the  voters  who  were  inclined  to  vote  the 
party  ticket  under  all  circumstances  and  there  were  many 
such  in  those  days.  At  the  same  time  there  was  much  dis- 
cord in  the  Republican  ranks.  The  attitude  of  the  farm 
mortgagors,  a  majority  of  whom  were  doubtless  Repub- 
licans, has  already  been  noticed.  It  is  said  that  the  League 
had  a  meeting  in  Milwaukee,  at  which  they  resolved  to 
support  Cothren ; G  the  irreconcilables  who  still  stood  by  the 
doctrines  of  the  Booth  case  gave  Dixon  a  very  grudging 
support  or  none  at  all ;  the  ardent  supporters  of  President 
Lincoln  were  inclined  to  rank  him  as  a  Democrat  on  ac- 
count of  the  decision  in  the  Kemp  case,  and  Ryan's  warm 
indorsement  of  him  as  a  sound  Democrat  in  principle  did 
much  to  encourage  this  idea.  At  this  time  the  indorsement 
of  Ryan  was  sufficient  condemnation  in  the  eyes  of  those 
Republicans  who  regarded  the  "Ryan  address"  as  a  dis- 
union document,  and  there  were  many  such. 

Thus  there  was  much  lukewarmness  in  the  Republican 
support  of  Dixon;  the  Racine  Journal  (Rep.)  said  that 
many  of  the  people  could  look  on  the  contest  with  indif- 
ference, as  the  woman  did  when  she  saw  her  husband  and 
the  bear  fighting,  not  caring  which  whipped;  the  Grant 
County   Herald    (Rep.)   bitterly  assailed   Dixon   as   not   a 


e  Wis.   State  Journal,  March  28,  1863. 


Dixon's  Second  Campaign  2 1 5 

Republican  and  saw  nothing  to  choose  between  the  can- 
didates. The  great  majority  of  the  Republican  papers, 
however,  supported  Dixon.  The  Democratic  press  gener- 
ally, if  not  universally,  supported  Cothren.  In  March  he 
(Cothren)  made  a  tour  of  a  part  of  the  state  and  it  was 
charged  that  he  was  treating  to  whiskey.  He  was  also 
called  a  copper  head  and  a  drunkard,  and  thus  the  campaign 
took  an  acrimonious  personal  tinge. 

As  the  campaign  advanced  it  became  evident  that  the 
vote  would  be  close,  with  the  chances  in  favor  of  Cothren, 
and  it  seemed  that  the  soldier  vote  alone  would  save  him 
from  defeat.  Reference  has  already  been  made  to  the  law 
passed  in  September,  1862,  allowing  soldiers  to  vote  while 
on  the  field,  but  this  law  applied  by  its  terms  only  to  gen- 
eral elections  held  in  November,  hence  in  the  absence  of 
further  legislation  there  could  be  no  soldier  vote  cast  at  the 
judicial  election  in  the  spring.  This  law  had  been  attacked 
as  unconstitutional  in  the  case  of  Chandler,  who  had  re- 
ceived the  majority  of  the  home  vote  for  sheriff  of  Dane 
County  in  November,  1862,  but  had  been  defeated  by  the 
soldier  vote  if  the  same  was  legal.7  The  case  was  argued 
and  submitted  January  27,  1863,  but  no  decision  had  been 
announced  in  February  and  March  wore  on  and  still  the 
case  was  undecided.  In  this  situation  the  legislature  passed 
chapter  59  of  the  laws  of  1863,  extending  the  soldiers'  right 
of  suffrage  to  judicial  elections  in  the  spring;  the  act  was 
approved  March  16th  and  published  March  17th  and  went 
into  effect  at  once. 

On  the  25th  day  of  March  the  Chandler  case  was  de- 
cided and  the  constitutionality  of  the  first  act  upheld  Judge 
Paine  writing  the  opinion  and  all  the  judges  concurring. 


1  State  ex  rel.  Chandler  v.  Alain,  16  Wis.  *398. 


2 1 6  The  Story  of  a  Great  Court 

The  question  decided  vitally  affected  the  approaching 
judicial  election,  because  if  the  law  allowing  soldiers  to 
vote  in  November  was  valid  then  the  law  allowing  them 
to  vote  in  the  spring  at  the  judicial  election  was  also  valid. 
The  question  will  doubtless  occur  to  the  mind  of  a  lawyer 
at  once  whether  Chief  Justice  Dixon  should  not  have  re- 
fused to  take  part  in  the  case  inasmuch  as  his  own  election 
would  in  all  likelihood  depend  upon  the  ruling  made. 
When  the  facts  are  all  considered,  however,  it  seems  clear 
that  there  is  no  just  ground  on  which  to  criticise  his  action. 
When  the  Chandler  case  was  presented  and  argued  in  Jan- 
uary there  was  no  question  involved  in  it  which  apparently 
could  ever  affect  Judge  Dixon.  At  that  time  there  was 
no  law  allowing  soldiers  to  vote  at  judicial  elections  and 
none  proposed.  Assuming  that  the  case  took  the  usual 
course  it  was  undoubtedly  considered  and  decided  in  the 
consultation  room  some  time  in  February,  certainly  long 
before  March  i6th,  for  the  elaborate  opinion  of  Judge 
Paine  must  have  taken  two  weeks  at  least  for  its  proper 
preparation.  Therefore  it  is  beyond  doubt  that  both  when 
the  case  was  argued  and  when  it  was  considered  and  de- 
cided by  the  judges  there  was  not  only  no  impropriety  in 
Judge  Dixon's  taking  part  in  the  discussion  and  decision, 
but  he  had  no  excuse  for  declining  to  take  part.  To  refuse 
to  act  would  be  to  shirk  his  duty. 

The  case  was  a  novel  and  delicate  one  ;  it  manifestly  called 
for  the  wisdom  of  the  whole  bench  and  Judge  Dixon  had 
no  course  open  to  him  either  in  January  or  February,  but 
to  shoulder  his  share  of  the  burden. 

When  the  decision  was  announced,  however  (owing  to 
the  action  of  the  legislature  nine  days  previously)  it  directly 
affected  the  prospects  of  Judge  Dixon's  election,  for  it  was 


Dixon's  Second  Campaign  2 1  7 

morally  certain  that  the  great  majority  of  the  soldier  vote 
would  be  cast  for  him.  What  was  he  to  do  under  these 
circumstances  ? 

He  must  have  considered  the  question  and  I  have  no 
doubt  he  answered  it  somewhat  in  this  manner:  "If  I  an- 
nounce that  I  took  no  part  in  the  decision  I  shall  announce 
a  falsehood,  for  I  did  take  part  in  the  discussion  and  de- 
cision of  the  case  and  cannot  now  change  the  fact.  My  act 
in  taking  part  was  absolutely  right  at  the  time,  and  I  shall 
make  no  false  pretense  of  judicial  delicacy.  Lawyers  ex- 
amining the  record  in  the  future  will  appreciate  the  exact 
situation." 

This,  I  think,  would  be  likely  to  be  his  thought.  Dixon 
possessed  a  great  store  of  moral  courage  and  was  careless 
of  criticism  when  he  felt  that  criticism  was  unjust ;  he  would 
not  descend  to  hypocritical  pretense  and  it  would  have  been 
mere  hypocritical  pretense  for  him  to  say  that  he  had  taken 
no  part  in  the  case. 

When  the  returns  of  the  election  first  began  to  come  in 
it  was  evident  that  the  contest  would  be  close ;  for  several 
days  both  sides  claimed  a  majority  of  the  home  vote,  but 
Cothren's  gains  went  steadily  on  and  it  finally  appeared 
that  he  (Cothren)  had  received  a  majority  of  about  4,000 
of  the  home  vote.  The  soldier  vote,  however,  reversed  this 
result  and  gave  Dixon  a  net  majority  of  about  4,000  votes. 

Thus  Dixon  was  twice  elected  as  an  independent  candi- 
date, once  against  a  Republican  party  nominee,  and  once 
against  a  Democratic  party  nominee.  Truly  he  was  the 
great  protagonist  in  Wisconsin  of  fearless  judicial  action 
and  of  non-partisanship  in  judicial  elections. 


2 1 8  The  Story  of  a  Great  Court 

CHAPTER  XVII 

THE  RAILROAD  TAX  DECISIONS 

The  attentive  reader  of  the  last  preceding  chapter  will 
probably  have  noticed  that  one  of  the  arguments  urged  by 
the  farm  mortgagors  against  Judge  Dixon  in  the  campaign 
of  1863  was  that  the  Supreme  Court  had  made  a  decision 
declaring  the  railway  taxation  law  unconstitutional  and  then 
to  please  stockjobbers  had  reversed  the  decision.  This,  of 
course,  was  in  effect  a  charge  of  favoritism  or  corruption  or 
both  and  considered  as  such  was  absolutely  groundless. 
The  Court  had,  however,  changed  front  twice  on  the  ques- 
tion and  a  review  of  the  decisions  can  hardly  fail  to  be 
interesting. 

The  only  provision  of  the  state  constitution  which  pur- 
ports to  govern  the  general  principles  of  taxation  is  Sec- 
tion 1  of  Article  VIII,  which  simply  says,  "The  rule  of 
taxation  shall  be  uniform,  and  taxes  shall  be  levied  upon 
such  property  as  the  legislature  shall  prescribe." 

This  laconic  and  important  provision  was  adopted  by  the 
constitutional  convention  of  1848  after  a  debate  in  the  com- 
mittee of  the  whole  of  less  than  half  a  day,  which  debate 
was  devoted  entirely  to  the  question  whether  it  was  ad- 
visable to  enumerate  in  the  constitution  the  classes  of  prop- 
erty which  should  be  exempt  from  taxation,  or  give  the 
legislature  power  to  fix  exemptions  from  time  to  time  as  it 
might  deem  best. 

It  cannot  be  for  a  moment  supposed  that  the  convention 
meant  by  this  clause  that  there  should  be  no  taxation  except 


The  Railroad  Tax  Decisions  2 1 9 

taxation  of  property.  There  were  many  excellent  lawyers 
in  that  convention,  including  Chief  Justice  Whiton  and 
Cole,  and  they  well  know  that  excise  taxation  was  a  widely 
used  and  very  valuable  form  of  taxation,  and  it  is  well  nigh 
ridiculous  to  imagine  that  they  intended  to  strike  this  power 
from  the  hands  of  the  state  by  a  clause  simply  purporting 
to  regulate  property  taxation.  The  only  sensible  conclusion 
as  it  seems  to  the  writer  (and  this  is  the  view  adopted  by 
the  Court  in  a  recent  case),1  is  that  the  convention  by  this 
clause  desired  to  place  the  power  of  exemption  of  property 
from  taxation  in  the  hands  of  the  legislature  and  to  require 
that  property  taxation  should  be  uniform.  It  is  as  though 
the  clause  read :  "Taxes  shall  be  levied  upon  such  property 
as  the  legislature  shall  prescribe  upon  a  uniform  rule." 

In  1848  when  the  constitution  was  adopted  the  state  was 
still  a  part  of  the  frontier  and  property  taxation  was  really 
the  only  form  of  taxation  which  could  be  seriously  regarded 
as  a  source  of  revenue.  Taxation  of  occupations  or  any 
other  form  of  excise  taxation  could  not  be  expected  to  bring 
in  any  appreciable  sums  to  the  public  treasury.  Such  tax- 
ation only  brings  satisfactory  results  in  thickly  settled  com- 
munities. Manifestly  this  was  the  reason  that  the  debate 
in  the  convention  related  only  to  the  taxation  of  property 
and  the  question  where  the  power  to  exempt  property 
should  be  placed.  It  was  assumed  that  the  state  had  the 
power  to  tax  occupations  without  special  mention  of  such 
power  in  the  constitution  and,  further,  that  little  could  be 
derived  from  such  taxation  in  any  event. 

All  this  appears  very  clearly  to  the  writer  from  exam- 
ination of  the  printed  journal  of  the  second  constitutional 
convention,2  as  well  as  the  newspaper  report  of  the  debate 


1  Nunnemaoher  v.  State,  129  Wis.  190. 

2. Journal  Const'l  Conv.  of  1848,  pp.  113-195  et  seq.  202-205. 


220  The  Story  of  a  Great  Court 

appearing  in  the  Wisconsin  Democrat  of  Jan.  5,  1848.  The 
principal  parts  of  the  debate  were  incorporated  by  the 
writer  in  the  opinion  of  the  Court  in  the  Nunnemacher  case 
before  cited  and  may  be  there  referred  to. 

The  coming  of  the  railroad,  however,  in  the  early  fifties 
changed  the  situation  very  materially ;  here  was  an  industry 
requiring  for  its  successful  operation  not  only  vast  amount 
of  property  but  a  kind  of  property  quite  difficult,  if  not 
practically  impossible,  to  subject  to  piecemeal  and  unequal 
taxation  by  the  separate  communities  through  which  it  ope- 
rated its  business.  Manifestly  some  other  form  of  taxation 
which  should  not  involve  the  possibility  of  the  severing  of 
the  system  into  separate  parts  by  local  tax  sales  would  be 
very  desirable  in  dealing  with  this  new  and  important  in- 
dustry. To  this  suggestion  the  legislature  soon  responded 
by  passing  Chapter  74  of  the  laws  of  1854,  entitled  "An  Act 
taxing  railroads  and  plank  roads,"  which  provided  that  all 
railroad  and  plank  road  companies  should  pay  into  the  state 
treasury  one  per  cent  of  their  gross  earnings  for  the  pre- 
vious year,  in  lieu  of  all  taxes,  and  authorized  a  levy  upon 
the  entire  property  and  franchises  of  the  company  and  sale 
of  the  same  in  case  of  default. 

It  seems  very  clear  that  if  this  was  taxation  of  property 
it  was  impossible  to  sustain  it.  By  no  process  of  reasoning 
can  a  tax  of  one  percent  upon  the  gross  earnings  of  a  busi- 
ness be  called  taxation  upon  a  uniform  rule  with  other  prop- 
erty of  the  state  which  is  appraised  and  taxed  according  to 
its  value  and  not  according  to  the  revenue  obtained  from  it. 
Naturally  the  law  was  at  once  attacked  as  unconstitutional 
by  the  railway  companies.  In  1855  the  action  of  the  Mil- 
waukee &  M.  R.  Co.  v.  Waukesha  County  brought  to  test 
the  law  was  tried  before  Judge  Hubbell  on  the  circuit  bench 
and  he  upheld  the  law  on  the  ground  that  it  provided  not 


The  Railroad  Tax  Decisions  221 

for  a  tax,  but  really  for  exemption  from  taxation  and  for 
the  payment  by  the  company  of  compensation  to  the  state 
for  such  exemption.  The  case  was  immediately  brought 
to  the  Supreme  Court  by  appeal  and  was  argued  by  Edward 
G.  Ryan  for  the  appellant  and  Finch  &  Lynde  for  the 
respondent,  and  the  judgment  of  the  trial  court  was  af- 
firmed. The  bench  at  this  time  was  composed  of  Whiton, 
Smith  and  Cole,  the  first  and  last  named  having  been  mem- 
bers of  the  convention  which  framed  the  constitution. 

Unluckily  and  for  some  reason  never  fully  explained  no 
formal  opinion  was  written  in  the  case.  It  was  perhaps  as 
important  a  case  as  the  Court  had  ever  had  presented  to 
it,  but  notwithstanding  this  fact  only  a  mere  memorandum 
of  the  points  decided  was  made,  the  memorandum  was  lost 
and  the  case  did  not  go  into  the  reports.  It  seems  probable 
that  the  judges  did  not  realize  the  importance  of  the  de- 
cision at  the  time. 

Upon  the  strength  of  this  decision  the  taxing  officers  all 
over  the  state  omitted  railway  property  from  the  assessment 
rolls  for  the  years  immediately  following  1854,  and  such 
property  paid  no  local  taxes.  Under  a  decision  of  the 
Court  made  in  1859  such  an  omission  if  illegal  would  in- 
validate the  entire  general  tax.3 

No  further  attacks  were  made  upon  the  law  until  1859, 
after  the  decision  of  the  Supreme  Court  in  Knowlton  v. 
Supervisors  of  Rock  County.4  This  last  named  case  in- 
volved the  constitutionality  of  an  act  of  the  legislature  pro- 
viding that  farming  lands  within  the  city  limits  of  Janes- 
ville  should  not  be  taxed  more  than  half  of  one  percent, 
whereas  the  other  taxable  property  in  the  city  was  subject 

s  Weeks  v.  Milwaukee,  10  Wis.  *243. 
49  Wis.  *410. 


222  The  Story  of  a  Great  Court 

to  a  tax  of  one  percent  or  more ;  it  was  held  and  very 
rightly  held,  as  it  seems,  that  such  a  law  clearly  violated 
the  constitutional  provision  that  the  rule  of  taxation  should 
be  uniform.  It  was  a  case  of  the  taxation  of  acre  property 
by  one  rule  and  platted  property  by  another  rule  and  seems 
entirely  indefensible. 

Prior  to  the  decision  of  this  case  at  the  June  term,  1859, 
Chief  Justice  Whiton  had  died  and  been  succeeded  by 
Judge  Dixon,  while  Judge  Smith  had  been  succeeded  by 
Judge  Paine,  and  only  Judge  Cole  was  left  on  the  bench 
of  the  three  judges  who  decided  the  early  unreported  rail- 
road case.  As  matter  of  fact  that  early  case  had  little 
legitimate  bearing  upon  the  Knowlton  case,  but  it  was  re- 
ferred to  and  relied  on  by  counsel,  and  Judge  Dixon  in  the 
opinion  of  the  Court  thus  disposes  of  it: 

"Upon  the  argument  we  were  referred  to,  and  much  stress  was 
laid  by  the  defendant's  counsel  as  an  authority  sustaining  his 
positions,  upon  the  decisions  of  this  court  in  the  case  of  The 
Milwaukee  and  Mississippi  Railroad  Co.  v.  The  Board  of  Super- 
visors of  the  County  of  Waukesha  and  others,  made  at  the  June 
term,  1855.  Upon  examination  of  the  records  and  files  of  the 
court  in  that  case,  we  can  find  neither  head  note  nor  opinion.  As 
a  matter  of  fact,  we  are  told  that  none  were  ever  written.  We 
are  therefore  without  any  authoritative  information  as  to  the 
points  there  determined,  or  the  views  taken  by  the  court;  and 
under  such  circumstances  we  can  hardly  say  that  we  should  not 
consider  the  questions  there  involved  as  still  open.  However, 
from  the  best  information  we  have  been  able  to  obtain,  we  are 
relieved  from  any  embarrassment  growing  out  of  the  doctrines 
which  it  was  claimed  by  counsel  were  established  by  it;  as  we 
learn  that  it  was  determined  by  the  court  that  no  question  of  the 
exercise  of  the  taxing  power  was  involved  in  it." 

Judge  Cole  dissented  with  vigor,  holding  to  the  view  that 
property  with  differing  characteristics  might  be  classified 
and  subjected  to  different  rates  of  taxation  without  violating 
the    Constitution,    providing    that    the    classification    was 


The  Railroad  Tax  Decisions  223 

proper.  He  then  goes  on  to  give  his  own  personal  recol- 
lections of  the  decision  in  Mil.  &  M.  R.  Co.  v.  Supervisors 
of  Waukesha  County,  the  unreported  railroad  case  decided 
in  1855.     On  this  subject  he  says,  after  stating  what  that 

case  was : 

"This  court,  after  as  full  an  examination  and  as  careful  con- 
sideration as  has  been  given  to  any  case,  which  I  have  partici- 
pated in  deciding,  sustained  the  law;   the  validity  of  which  had 
been  called  in  question.     Though  no  opinion  has  been  prepared, 
yet  the  points  decided  were  written  out  by  one  of  the  members 
of  the  court,  and,  as  he  informs  me,  placed  upon  file  with  the 
papers  in  the  case.     It  appears  that  the  paper  containing  these 
points  has  been  misplaced  or  cannot  now  be  found.     Still,  I  sup- 
posed the  ground  of  that  decision  was  well  understood  through- 
out the  state.     This  court  did  not  decide,  as  has  been  intimated, 
that  the  law  of  1854  did  not  impose  a  tax  in  the  just  and  proper 
sense  of  that  term,  but  was  a  payment  made  to  the  state  by  the 
several  corporations,  to  which  the  law  applied,  in  the  nature  of 
a  bonus  or   compensation  for  the   exemption  granted.     This   is 
certainly  not  the  place  to  state,  at  length,  the  reasons  which  led 
the  court  to  the  conclusions  arrived  at  in  the  case,  even  if  I  had 
the  time  to  do  so;    and  I  shall  barely  allude,  therefore,  to  the 
construction  we  then  placed  upon  section  one  of  article  VIII  of 
the  constitution,  to    show    that   it   would   have    been  competent 
within  the  principle  of  that  decision,  for  the  legislature  to  have 
provided  that  the  farming  and  garden  lands,  within  the  limits 
of  the  city  of  Janesville,  might  be  subject  to  a  different  rule  of 
taxation  for  city  purposes,  than  the  other  real  estate  therein  sit- 
uated." 

He  then  proceeds  to  state  in  substance  that  it  was  decided 
in  the  Mihvaukee  case  that  property  might  be  classified, 
i.  e.  that  all  railroad  property  might  be  put  in  one  class  and 
be  subjected  to  one  rule  or  percentage  of  taxation,  while 
other  essentially  different  kinds  of  property  could  be  class- 
ified by  themselves  and  each  subjected  to  its  own  rule  or 
percentage,  and  that  so  long  as  the  classification  was  proper 
the  rule  of  uniformity  was  not  broken.  It  is  interesting, 
to  say  the  least,  to  note  the  varying  statements  with  regard 


224  The  Story  of  a  Great  Court 

to  the  unreported  case;  Judge  Dixon  says  that  "we  are 
told"  that  no  opinion  or  headnote  was  ever  written  and  that 
"we  learn  that  it  was  determined  by  the  Court  that  no 
question  of  the  exercise  of  the  taxing  power  was  involved 
in  it." 

This  statement  seems  diametrically  opposed  to  Judge 
Cole's  assertion  that  the  Court  "did  not  decide,  as  has  been 
intimated,  that  the  law  of  1854  did  not  impose  a  tax  in  the 
just  and  proper  sense  of  that  term." 

Judge  Cole  further  says  that  though  no  opinion  was  pre- 
pared the  points  decided  were  written  out  by  one  of  the 
members  of  the  Court  and,  "as  he  informs  me,"  placed  upon 
file  with  the  papers  in  the  case. 

The  member  of  the  court  referred  to  could  be  only 
Judge  Smith  (Judge  Whiton  being  deceased),  and  Judge 
Smith  was  still  the  official  reporter  of  the  Court.  Now 
comes  a  most  remarkable  fact.  Judge  Smith,  in  reporting 
the  Knowlton  case,  inserts  as  a  note  the  Milwaukee  case 
complete  with  the  arguments  of  counsel,  the  decision  of 
Judge  Hubbell  at  the  circuit  and  an  opinion  brief  indeed  but 
with  all  the  indicia  of  a  formal  opinion,  and  beginning  in 
the  usual  way,  "By  the  Court,  Smith,  J.,"  and  places  the 
following  note  at  its  head,  "(The  following  paper  contains 
all  the  opinion  of  the  Court  which  has  ever  been  written, 
except  the  order  affirming  the  decree  of  the  circuit  court, 
and  which  has  been  discovered  since  the  opinions  in  Knowl- 
ton v.  Supervisors  of  Rock  County  were  written — Rep.)." 

This  amounts  to  a  categorical  statement  by  Judge  Smith 
that  it  is  the  statement  of  points  decided  which  Judge  Cole 
refers  to  as  having  been  written  out  by  one  of  the  members 
of  the  court  and  placed  on  file  with  the  papers  in  the  case. 
One   can   come   to   no   other   conclusion   without   charging 


The  Railroad  Tax  Decision  225 

Judge  Smith  with  deliberately  manufacturing  the  document 
after  the  decision  in  the  Knowlton  case,  and  this  is  not  to 
be  thought  of.  Regarding  it,  therefore,  as  the  statement  of 
points  decided  in  the  Milwaukee  case,  we  find  by  reading 
it  that  two  points  affecting  the  merits  were  decided  in  that 
case :  First,  that  the  law  does  not  violate  the  uniform  tax- 
ation rule  provided  all  railroad  property  of  the  same  class 
is  taxed  alike  or  exempted  alike  as  it  appears  to  be ;  Second, 
that  the  court  does  not  think  that  the  law  imposes  a  tax 
within  the  meaning  of  the  constitutional  provisions  and 
therefore  is  valid  so  far  as  the  government  is  concerned. 

The  first  proposition  is  the  proposition  which  Judge  Cole 
says  was  decided,  and  the  second  proposition  seems  very 
like  the  proposition  which  Judge  Cole  says  was  not  decided. 
There  was  evidently  a  radical  difference  between  Judge 
Cole's  recollection  and  Judge   Smith's  recollection,   for  it 
must  have  been  upon  Judge  Smith's  recollection  that  Judge 
Dixon  based  the  statement  in  his  opinion  that  "we  learn  that 
it  was   determined  by  the  court  that  no  question  of  the 
exercise  of  the  taxing  power  was  involved  in  it."     Assum- 
ing, as  we  apparently  must,  that  the  memorandum  pub- 
lished by  Judge  Smith  in  the  note  to  the  case  was  the  long 
lost  statement  of  points  filed  at  the  time,  then  it  seems  that 
Judge  Smith's  recollection  was  the  better.     There  is  just 
one  way  in  which  they  may  perhaps  be  harmonized.     The 
memorandum  says  that  it  was  held  that  the  act  does  not 
impose  a  tax  within  the  meaning  of  the  constitutional  pro- 
visions; Judge  Cole  says  that  it  was  not  held  that  the  act 
did  not  impose  a  tax  in  the  just  and  proper  sense  of  that 
term.     Now  if  the  constitutional  provision  refers  only  to 
property  taxation  and  the   law   was   considered   to  be  an 
excise  law,  or  law  levying  an  occupation  tax,  both  state- 
15 


226  The  Story  of  a  Great  Court 

merits  might  be  true.  The  tax  was  not  a  tax  of  the  kind 
referred  to  and  regulated  by  the  constitution,  but  was  a 
tax  within  the  broad  and  true  sense,  as  every  excise  or 
occupation  tax  is,  although  it  has  also  contract  elements 

in  it. 

This  is  practically  the  conclusion  to  which  the  court  came 
when  the  whole  subject  of  taxation  was  presented  in  the 
railway  and  inheritance  tax  cases  presented  in  the  year 
1906.  Reference  to  those  cases  will  disclose  that  the  his- 
tory of  the  early  decisions  and  especially  the  unreported 
decision  was  there  quite  fully  reviewed.5 

The  discussion  of  the  Milwaukee  case  in  the  Knowlton 
case,  and  especially  the  statement  by  Judge  Cole  that  the 
Milwaukee  case  was  overruled  by  the  later  case,  again  in- 
volved the  railway  tax  law  of  1854  in  serious  doubt,  and 
the  state  brought  an  action  of  mandamus  in  January,  i860, 
to  compel  a  delinquent  plank  road  company  to  pay  one  per 
cent  of  its  gross  earnings  into  the  treasury  of  the  state,6 
and  thus  the  question  was  again  presented. 

In  this  case  Judge  Paine  wrote  the  opinion.  He  and 
Judge  Dixon  agreed  that  there  could  be  no  classification 
and  difference  in  rates  between  the  different  classes  of 
property;  that  uniform  taxation  of  property  meant  equal 
taxation  according  to  valuation;  that  the  law  in  question 
was  a  property  tax  law,  and  not  a  licensing  act,  or  a  police 
measure,  and  hence  violated  the  rule  of  uniformity  and  was 
void. 

Judge  Smith  was  still  the  reporter  of  the  Court  and  ap- 
parently gave  some  additional  information  to  the  Judges 


5  State  v.  Railway  Companies,  128  Wis.  449;  C.  &  N.  W.  Ry.  Co. 
v.  State,  128  Wis.  553;  Nunnemacher  v.  State,  129  Wis.  190. 
e  State  v.  W.  L.  &  F.  R.  P.  Co.  11  Wis.  *35. 


The  Railroad  Tax  Decision  227 

with   regard  to  the   decision  in  the  unreported   case,   for 
Judge  Paine  says : 

"It  is  claimed  at  the  outset,  that  the  question  has  already  been 
decided  by  this  court  in  the  case  of  the  Milwaukee  and  Miss.  R.  R. 
Co.  v.  The  Supervisors  of  Waukesha,  which  was  decided  several 
years  ago,  but  in  which  there  never  was  any  opinion  written. 
The  same  position  was  taken  in  Knowlton  v.  Supervisors  of  Rock 
Co.;  and  it  was  there  intimated  in  the  opinion  of  the  chief  jus- 
tice, that  under  the  peculiar  circumstances  of  that  decision,  not 
knowing  the  precise  ground  upon  which  it  rested,  nor  the  reasons 
of  the  court,  we  could  hardly  feel  bound  by  it  as  an  authority. 
Its  effect,  however,  was  at  that  time  avoided  by  the  fact  that, 
according  to  the  best  information  we  had  of  it,  the  court  held 
that  the  imposition  upon  the  railroad  was  not  a  tax  within  the 
meaning  of  the  constitution.  The  source  of  that  information 
was  a  letter  written  by  one  of  the  judges  to  one  of  the  counsel 
in  the  case,  stating  the  points  decided.  And  it  was  there  said 
that  the  court  held:  1.  That  the  amount  required  to  be  paid  by 
the  railroad  company  was  not  a  tax;  and  that  if  it  was  a  tax,  the 
constitutional  requirement  of  uniformity  was  complied  with,  in- 
asmuch as  all  railroads  were  taxed  alike.  Mr.  Justice  Cole,  how- 
ever, who  was  then  on  the  bench,  places  his  decision  upon  the 
last  ground,  and  does  not  understand  that  the  court  relied  very 
strongly  upon  the  first." 

It  will  be  noticed  that  it  is  now  said  that  one  of  the 
Judges  .(necessarily  it  must  have  been  Judge  Smith)  wrote 
a  letter  to  one  of  the  counsel,  and  in  this  letter  it  was  said 
that  the  Court  held  "i.  That  the  amount  required  to  be 
paid  by  the  railroad  company  was  not  a  tax."  The  state- 
ment that  the  decision  was  contained  in  a  letter  seems  to 
introduce  a  new  element  of  uncertainty  into  the  question 
as  to  what  was  really  decided  in  the  early  case.  Judge 
Cole  again  dissented  on  the  same  grounds  as  in  the  Knozvl- 
ton  case. 

In  the  opinion  of  the  Court  Judge  Paine  takes  up  and 
disposes  of  the  claim  that  the  exaction  may  be  sustained 
as  a  license  fee,  and  not  a  property  tax,  and  rejects  it.  for 


228  The  Story  of  a  Great  Court 

various  reasons,  among  which  are,  that  it  is  called  a  tax 
in  the  title  of  the  act,  that  the  law  provides  for  no  license, 
does  not  pretend  to  grant  any  authority  or  privilege  to  do 
any  act  and  hence  does  not  perform  any  of  the  functions 
of  a  license  law. 

The  subsequent  history  of  the  railway  tax  litigation  and 
the  final  overruling  of  the  Plank  Road  case  is  briefly  given 
in  the  opinion  of  the  Court  in  the  Nunnemacher  case,  supra, 
and  the  statement  there  made  is  inserted  here  because  it 
seems  to  present  the  matter  fully  as  well  as  the  writer  could 

hope  to  do  again. 

"This  decision  was  made  at  the  January  term,  1860,  and  evi- 
dently threw  the  financial  systems  of  the  state  and  municipali- 
ties into  great  disorder.  The  legislature  at  once  passed  chs.  173 
and  174,  Laws  of  1860;  the  first-named  chapter  exempting  all 
railroad  property  from  taxation,  and  the  last-named  chapter  pro- 
viding for  taxation  of  railroads  by  the  license  system.  In  these 
acts  the  attempt  of  the  legislature  to  follow  the  suggestions  of 
the  court  in  the  Plank  Road  Case  (11  Wis.  35)  and  make  a  law 
which  should,  in  fact,  be  a  license  law  is  very  manifest.  Every 
reason  suggested  in  that  case  why  the  law  of  1854  could  not  be 
considered  a  license  law  was  observed,  and  an  attempt  made  to 
obviate  it.  But  the  question  would  not  down.  It  was  presented 
gain  in  Kneeland  v.  Milwaukee,  15  Wis.  454,  in  1862,  when  the 
extent  of  the  financial  ruin  and  governmental  paralysis  resulting 
from  the  holding  in  the  Plank  Road  Case  was  evident  on  every 
hand.  The  Court  in  this  case,  after  affirming  the  Plank  Road 
Case  upon  the  first  argument,  entertained  a  motion  for  rehear- 
ing, and  while  Justices  Dixon  and  Paine  remained  of  the  same 
opinion  upon  the  merits  they  finally  agreed  in  overruling  their 
former  decision  and  returning  to  the  decision  in  the  Milwaukee 
&  M.  R.  Co.  Case,  on  the  ground  of  stare  decisis.  So  the  law  was 
settled  in  this  stato  that  the  act  of  1854  was  constitutional. 

"The  only  thing  that  can  be  said  to,  have  remained  doubtful 
was  the  question  as  to  what  ground  or  grounds  the  decision  in 
the  Milwaukee  &  M.  R.  Co.  Case  went  on.  According  to  Judge 
Smith's  memorandum,  the  only  contemporaneous  written  evi- 
dence which  we  have,  it  went  upon  two  grounds:  (1)  That  if  a 
tax,  it  did  not  violate  the  rule  of  uniformity  because  all  railroad 


The  Railroad  Tax  Decision  229 

property  was  treated  alike,  and   (2)    because  the  court  did  not 
deem  it  a  tax  within  the  constitutional  provisions  (i.  e.  sec.  1  of 
art.  VIII  of  the  constitution).     This  second  proposition  can  only 
mean  that  it  was  not  a  tax  upon  property.     According  to  Judge 
Cole  it  was  not  decided  that  the  law  did  not  impose  a  tax,  but 
Justice  Paine  in  the  final  opinion  in  the  Eneeland  Case  treated 
this  difference  of  opinion  as,  in  fact,  immaterial,  and  said  that 
all  that,  it  was  necessary  to  know  was  that  it  was  held  that,  if 
it  was  a  tax,  it  was  no  violation  of  the  rule  of  uniformity,  and 
that  the  law  was  held  to  be  no  violation  of  the  constitution.     It 
is  not  very  surprising  that  Judge  Cole's  recollection  should  not 
agree  with  the  written  memorandum.     Doubtless  the  discussion 
in  the  consultation  room  took  a  wide  range,  and  all  know  how 
rare  it  is  that  two  persons  will  remember  a  long  conversation 
or  consultation  alike.     Both  versions  may  be  practically  harmon- 
ized on  this  theory,  namely,  that  it  was  held  not  to  amount  to 
a  property  tax  under  sec.  1  of  art.  VIII  of  the  constitution,  as 
Judge  Smith  says,  but  was  held  to  be  an  exercise  of  the  inherent 
taxing  power  of  the  state.     Judge  Smith's  memorandum  nowhere 
negatives  this  theory,  but  rather  tends  to  support  it,  while  this 
also  justifies  Judge  Cole's  statement  that  it  was  not  held  that  the 
law  did  not  impose  a  tax.     However  this  may  be,  it  would  seem 
that  the  question  is  authoritatively  settled  in  the  case  of  Wis. 
Cent.  R.  Co.  v.  Taylor  Co.  52  Wis.  37,  8  N.  W.  833,  where  it  was 
held,  after  an  historical  review  of  the  cases  in  an  opinion  by  the 
present  chief  justice,  that  'the  decision  of  this  court  in  the  case 
of  Milwaukee  &  M.  R.  Co.  v.  Waukesha  Co.  9  Wis.  449,  appears 
to  be  eminently  sound  on  all  points  involved,  and  all  contained 
in   subsequent  opinions  inconsistent   therewith   is  hereby   disap- 
proved.'    Just  what  is  meant  by  'all  points  involved'  may  not  bo 
entirely  certain,  although  it  would  seem  to  refer  to  the  points 
named  in  the  memorandum  of  the  decision  made  by  Judge  Smith; 
but  there  can  be  little  doubt  as  to  what  is  meant  by  the  phrase 
'all    contained    in    subsequent    opinions    inconsistent    therewith.' 
The  positions  which  Justices  Dixon  and  Paine  took  in  the  Plank 
Road  Case   (11  Wis.  35)   which  were  inconsistent  with  the  Mil- 
waukee &  M.  R.  Co.  Case  and  upon  which  the  latter  case  was 
overruled  were  that  the  railroad  tax  was  a  tax  upon  property, 
and  that  hence  it  was  void  because  not  uniform  under  sec.  1  of 
art.   VIII,  and  these  positions  are  certainly  disapproved  by  the 
Taylor  County  Cas*.     So  we  regard  it  as  settled  by  the  necessary 
effect  of  the  decisions  named  that  the  railroad  tax  legislation  of 
1854,  and  a  fortiori  the  railroad  license  legislation  of  I860  and 


230  The  Story  of  a  Great  Court 

of  following  years,  while  imposing  a  tax  in  the  proper  sense,  did 
not  impose  a  tax  upon  property  within  the  meaning  of  sec.  1  of 
art.  VIII  of  the  constitution,  but  was  in  fact  excise  taxation  upon 
the  privilege  of  transacting  business." 

It  is  only  history  now  to  recall  the  fact  that  the  railway 
tax  law  of  i860  remained  upon  the  statute  books  with 
changes  and  increases  befitting  the  growth  of  the  great 
business  from  the  time  of  its  enactment  up  to  the  passage 
of  the  ad  valorem  tax  law  of  1903 ; 7  that  the  same  system 
of  taxation  by  license  of  the  business  and  exemption  of 
property  has  been  extended  to  street  railways,  electric  light 
companies,  and  telephone  and  telegraph  companies,  and 
that  for  many  years  these  occupation  or  privilege  taxes 
aggregated  millions  and  formed  the  principal  source  of  the 
revenues  of  the  state. 


1  Chap.  315,  Laws  1903. 


Paine's  Resignation  231 


CHAPTER  XVIII 

JUDGE   PAINE'S   RESIGNATION    AND   THE   APPOINTMENT   OF 
JASON    DOWNER 

After  Chief  Justice  Dixon's  re-election  for  a  full  term 
in  the  spring  of  1863  it  might  well  be  anticipated  that  the 
bench  would  remain  as  then  constituted  for  a  number  of 
years  at  least. 

All  of  the  judges  were  young  and  vigorous;  both  Dixon 
and  Cole  had  recently  and  successfully  run  the  gauntlet  of 
the  farm  mortgage  movement  and  had  overcome  factional 
opposition  in  their  own  party,  while  Judge  Paine  certainly 
had  little  reason  to  apprehend  the  result  of  the  campaign 
for  re-election  which  he  would  be  compelled  to  make  in  the 
spring  of  1865.  Democratic  hopes  which  had  risen  so  high 
in  the  fall  of  1862  were  practically  extinguished  in  the  sum- 
mer of  1863.  The  administration  needed  only  victories  in 
the  field  to  arouse  again  the  drooping  spirits  of  the  Repub- 
licans, and  these  victories  came  in  July,  1863,  when  Vicks- 
burg  and  Gettysburg  sounded  the  death  knell  of  the  Con- 
federacy. There  was  little  prospect  that  any  faction  or  any 
party  would  be  bold  enough  to  nominate  a  candidate  against 
Judge  Paine  if  he  chose  to  run  again.  Moreover,  the  ju- 
dicial work  was  congenial  to  him  and  he  had  fully  demon- 
strated his  eminent  fitness  for  the  bench. 

Nevertheless,  as  has  been  briefly  stated  in  a  preceding 
chapter,  Judge  Paine  resigned  on  the  tenth  day  of  August, 
1864,  for  the  purpose  of  entering  the  military  service  of 
the  United   States,  and  did  actually  enter  the   service'  as 


232  The  Story  of  a  Great  Court 

lieutenant-colonel  of  a  regiment  and  continued  therein  until 
May,  1865,  when  the  war  had  practically  ceased. 

At  this  distance  of  time  Judge  Paine's  action  seems 
strange,  not  to  say  unaccountable.  When  he  resigned  the  war 
was  in  fact  in  its  last  stages,  and  it  was  apparent  to  all 
that  the  end  was  only  a  question  of  months.  There  was  no 
great  emergency ;  no  danger  of  disruption  of  the  Union ; 
there  was  no  situation  even  suggesting  the  necessity  that  a 
high  official  of  the  state,  performing  public  duties  of  the 
highest  importance  should  lay  down  those  duties  and  take 
up  arms.     Why  then  did  Judge  Paine  resign? 

The  writer  will  not  presume  to  answer  this  question  pos- 
itively, but  will  simply  say  that  he  has  little  doubt  that 
Judge  Paine  entered  the  army  because  he  desired  to  demon- 
strate to  all  his  entire  loyalty  to  the  Union.  If  the  question 
be  asked  why  Judge  Paine  should  feel  it  necessary  to  make 
a  practical  demonstration  of  his  loyalty  the  answer  is  not 
far  to  seek. 

Up  to  the  time  of  the  outbreak  of  the  civil  war  the  Re- 
publican party  in  Wisconsin  had  been  an  ultra  state  rights 
party ;  it  had  made  the  doctrines  of  the  Booth  case  the  test 
of  party  fealty  and  had  won  its  victories  on  that  platform ; 
Judge  Paine  had  been  the  chief  and  most  brilliant  exponent 
of  these  doctrines  and  was  still  so  regarded.  But  as  the 
war  dragged  along  year  after  year,  and  as  it  became  more 
and  more  evident  that  the  southern  states  founded  their 
entire  contention  on  the  doctrine  of  state  rights  it  became 
evident  to  the  great  mass  of  the  party  that  they  must  part 
company  with  the  state  rights  idea 'and  that  if  the  Union 
was  to  exist  the  doctrine  that  each  state  could  nullify  any 
federal  law  displeasing  it  must  be  abandoned.  There  was 
a  very  respectable  minority  of  the  party,  led  by  such  men  as 


Paine's  Resignation  233 

Timothy  O.  Howe,  who  had  always  opposed  the  principles 
of  the  Booth  case  and  claimed  that  federal  power  must  be 
supreme  upon  all  federal  questions,  and  as  the  war  pro- 
gressed this  minority  had  the  satisfaction  of  seeing  their 
ideas  vindicated  and  approved  by  the  great  majority  of 
the  party. 

Judge  Paine  fully  appreciated  this  change  of  sentiment 
in  his  party  associates,  but  he  never  himself  abandoned  the 
principles  upon  which  the  Booth  case  rested.  To  him  those 
principles  were  essential  to  human  freedom.  He  had  em- 
braced them  in  early  manhood  and  fought  a  successful 
battle  for  their  vindication  as  gallant  and  knightly  as  ever 
was  fought  by  any  Galahad  in  coat  of  mail.  He  could  not 
abandon  them ;  they  were  a  part  of  his  very  life ;  to  him  they 
did  not  mean  disunion  or  secession,  whatever  others  might 
think.  He  afterwards  drew  the  distinction  between  the 
state  rights  doctrines  of  the  Booth  case  and  the  doctrine  of 
secession  in  a  dissenting  opinion  in  a  case  arising  in  I869,1 
and  which  will  be  more  fully  treated  later  in  this  work. 

But  the  distinction  which  his  accurate  legal  mind  saw 
existing  between  the  two  doctrines  was  too  fine  for  the  great 
mass  of  the  people  to  appreciate.  To  them  state  rights 
meant  the  right  to  secede.  In  their  view  the  doctrine  of 
state  rights  was  directly  responsible  for  the  existence  of  a 
war  which  had  drained  the  country  of  millions  upon  millions 
of  its  treasure  and  thousands  upon  thousands  of  the  flower 
of  its  youth. 

Judge  Paine  could  not  help  seeing  the  popular  verdict 
though  protesting  against  its  correctness.  He  saw  himself 
pilloried  in  the  public  estimation  as  believing  in  the  right  of 


i  Knorr  v.  Home  Ins.  Co.  25  Wis.  143. 


234  The  Story  of  a  Great  Court 

secession.  This  could  not  fail  to  grieve  him  sorely  and  his 
conclusion  doubtless  was  that  the  only  effective  way  to 
prove  his  absolute  loyalty  to  the  Union  and  his  hatred  of 
secession  was  to  enter  the  army  and  prove  it  by  "wager 
of  battle." 

This  was  thought  by  some  of  his  contemporaries  to  be 
the  controlling  reason  for  his  resignation,  and  there  seems 
to  the  writer  little  doubt  of  the  fact. 

Judge  Paine's  last  appearance  on  the  Supreme  bench 
(prior  to  his  return  to  it  after  the  close  of  the  war)  was 
on  the  nth  day  of  August,  1864;  his  resignation,  however, 
did  not  take  effect  until  November  15th  following,  on  which 
day  his  successor,  Jason  Downer,  of  Milwaukee,  who  had 
been  appointed  by  Governor  Lewis  to  fill  the  vacancy,  took 
his  seat. 

There  is  very  little  historical  material  at  hand  from  which 
to  draw  any  extended  sketch  of  the  life  of  Jason  Downer 
prior  to  his  service  as  Justice  of  the  Supreme  Court.  He 
was  fifty-one  years  of  age  at  the  time  of  his  appointment 
and  had  practiced  law  at  Milwaukee  for  twenty-two  years, 
during  which  time  he  had  built  up  a  profitable  and  steady 
business.  His  career  as  a  lawyer  had  not  been  brilliant  or 
startling,  but  it  had  been  successful  because  he  combined 
with  a  clear  head  and  logical  mind  great  industry  and  un- 
questioned integrity.  He  was  a  safe  counselor,  a  diligent 
student  and  a  careful,  thrifty  man  of  business,  who  ac- 
cumulated a  considerable  property,  much  of  which  went  at 
his  death  in  1884  to  endow  the  Milwaukee-Downer  Wom- 
an's College. 

Perhaps  the  most  satisfactory  sketch  of  his  life  now  exist- 
ing is  the  sketch  prepared  by  Hon.  D.  H.  Johnson  of  Mil- 


Paine's  Resignation  235 

waukee,  and  presented  to  the  Supreme  Court  May  15,  1884,2 
as  follows : 

"The  sober,  diligent,  and  well-rounded  career  of  Judge  Downer 
was  free  from  startling  adventures,  and  was  calculated  to  com- 
mand respect,  rather  than  inspire  enthusiasm.  His  eulogy,  like 
his  own  utterances,  should  he  characterized  by  decent  modera- 
tion, just  discrimination,  and  careful  abstention  from  irrelevant 
and  overdrawn  statements. 

"Jason  Downer  was  born  at  Sharon,  Vermont,  September  9, 
1813.  His  father  was  a  wealthy  farmer,  as  wealth  was  counted 
in  those  days.  He  remained  at  the  homestead  farm  until  he  was 
nineteen  years  of  age.  He  then  entered  Kimball  Union  Academy 
at  Plainfield,  New  Hampshire.  In  1834  he  entered  Dartmouth 
College  and  graduated  in  1838.  He  soon  afterwards  went  to 
Louisville,  Kentucky,  where  he  studied  law  and  was  admitted  to 
practice.  In  1842  he  removed  to  Milwaukee.  About  that  time 
the  Milwaukee  Sentinel  was  established.  Mr.  Downer  was  one  of 
the  original  proprietors  of  the  paper,  and  for  about  six  months 
he  filled  the  editorial  chair.  He  retired  from  that  position  in 
favor  of  Gen.  Rufus  King.  Thenceforth  he  devoted  himself  to 
the  practice  of  the  law. 

"In  1842,  Milwaukee  was  a  small,  straggling,  lake-shore  vil- 
lage, giving  slight  promise  of  its  future  greatness.  Its  commer- 
cial and  manufacturing  prosperity  was  visible  only  to  the  eye  of 
faith.  A  reference  to  the  files  of  the  first  volume  of  the  Sentinel 
will  show  that  Mr.  Downer  had  the  faith  and  sagacity  requisite 
to  discern  the  destiny  of  his  chosen  home.  He  was  satisfied  to 
grow  with  its  growth  and  wait  for  his  just  share  of  the  business 
and  wealth  in  store  for  it.  From  1842  to  the  day  of  his  death  he 
was  a  loyal  Milwaukean,  always  taking  a  deep  interest  and  fre- 
quently an  active  part  in  the  various  enterprises  whose  history 
constitutes  the  main  chapters  in  the  annals  of  the  city. 

"In  November,  1864,  he  was  appointed  an  associate  justice  of 
this  court  in  place  of  Byron  Paine,  resigned,  and  the  following 
spring  he  was  elected  to  that  position  for  a  full  term.  He  par- 
ticipated in  the  labors  of  this  court  until  September  11,  1867, 
when  he  resigned. 

"His  judicial  career,  including  a  brief  period  when  he  occu- 
pied the  circuit  bench,  by  appointment  to  fill  a  vacancy,  did  not 
exceed  three  years.  But  it  was  long  enough  to  establish  his 
standing  as  a  learned,  industrious,  and  able  jurist. 


■-  CO  Wis.  p.  xxxii. 


236  The  Story  of  a  Great  Court 

"By  far  the  greater  portion  of  his  active  life  was  spent  in 
the  practice  of  the  law  in  Milwaukee  county.  At  the  Milwaukee 
bar  his  powers  were  formed;  there  they  were  put  forth  in  their 
full  vigor  for  more  than  thirty  years;  there  he  acquired  the  pro- 
fessional distinction  that  led  to  his  elevation  to  the  bench;  there 
he  earned  the  greater  part  of  his  fortune.  He  returned  to  the 
Milwaukee  bar  when  he  laid  by  the  judicial  ermine,  and  he  was 
a  member  of  that  bar  down  to  the  day  of  his  death.  It  is  there- 
fore eminently  fit  that  the  Milwaukee  bar  should  announce  his 
death  to  this  court  and  here  bear  testimony  to  his  worth. 

"As  a  lawyer  he  was  distinguished  for  the  extent  and  depth 
of  his  learning,  for  the  soundness  of  his  judgment,  and  for  pro- 
fessional diligence  and  fidelity.  As  an  advocate  he  was  strong 
and  convincing,  whether  .dealing  with  questions  of  law  or  fact. 
If  lie  lacked  the  eloquence  and  magnetism  of  Ryan,  Arnold,  and 
Carpenter,  or  the  ingenuity  and  originality  of  Byron  Paine,  the 
deficiency  was  well  supplied  by  the  soundness  and  extent  of  his 
learning  and  the  clearness  of  his  views.  His  arguments  were  sel- 
dom ornate,  never  florid,  but  always  direct  and  to  the  point.  As 
an  adviser  he  was  cautious  and  conservative,  not  given  to  rais- 
ing false  expectations,  never  blind  to  the  strength  of  the  adver- 
sary's case,  and  never  tempted  into  that  wild  professional 
partizanship  so  apt  to  injure  the  cause  which  it  espouses.  In 
short,  his  cases  did  not  run  away  with  him.  He  was  therefore 
justly  considered  among  the  safest  of  advisers.  It  was  mainly 
this  quality  that  built  up  for  him  a  large  practice  and  an  enviable 
fame.  His  clients  felt  secure  in  his  judgment,  his  learning,  and 
his  industry.  He  was  chary  of  promises  of  success,  and  was  apt 
to  accomplish  more  than  he  predicted. 

'As  a  judge  his  record  was  made  here.  I  need  not  say  to  this 
court  that  it  is  an  honorable  record.  The  reports  of  his  opinions 
are  redolent  of  deep  learning  and  vigorous  thought.  They  are 
models  of  clearness  and  conciseness.  He  was  the  organ  of  the 
court  in  the  promulgation  of  some  of  its  important  decisions,  and 
th<^  court  has  never,  I  believe,  been  embarrassed  by  any  loose- 
ness or  redundancy  in  his  manner  of  pronouncing  its  judgments. 
It  is  surely  better  that  one's  style  should  be  colorless  than  that 
it  should  be  colored  by  prejudice  or  whim,  or  darkened  by  un- 
certainty. 

"In  his  business  relations  his  thrift  and  his  integrity  went 
hand  in  hand.  He  accumulated  a  handsome  fortune,  but  he 
wronged  no  man.  In  all  his  business  ventures  his  caution  and 
his   enterprises   were   happily   balanced.     He  was  not  afraid   of 


JASON  DOWNER. 


Paine's  Resignation  237 

large  and  complicated  undertakings,  and  he  was  not  reckless  or 
thoughtless  in  small  and  simple  matters. 

"It  is  but  justice  to  add  that  although  he  made  little  public 
show  of  any  non-professional  attainments  or  accomplishments,  he 
was  in  fact  a  ripe  scholar  and  a  diligent  student  of  the  ancient 
and  modern  classics. 

"In  his  domestic  relations,  it  is  enough  to  say  that  he  was 
above  reproach.  He  leaves  behind  him  a  well-earned  reputation 
for  probity,  diligence,  and  ability.  The  disposition  which  he 
made  of  his  large  estate  in  his  last  will  and  testament  may  well 
serve  as  a  model  for  other  rich  men.  Without  neglecting  any 
of  the  claims  of  kindred  and  friends,  he  remembered  in  a  munifi- 
cent manner  an  institution  of  learning  in  which  he  felt  an  inter- 
est, and  did  not  couple  his  gift  with  any  of  those  absurd  and 
crotchety  conditions  which  often  make  such  a  bequest  a  burden 
rather  than  a  help." 

Chief  Justice  Cole's  estimate  of  him  is  interesting,  and 
a  part  of  it  is  as  follows : 

"He  was  a  hard  student  and  exclusively  devoted  to  his  profes- 
sion. The  prizes  of  political  life  did  not  excite  his  ambition  or 
have  attraction  for  him.  And  he  gave  his  whole  heart  and  soul 
and  energy  to  the  study  and  practice  of  his  chosen  profession. 
They  seemed  to  be  his  delight  by  day  and  his  solace  by  night. 
The  law  is  said  to  be  a  jealous  mistress,  who  will  tolerate  no 
rival.  As  a  rule  she  certainly  bestows  her  highest  favors,  her 
brightest  honors,  upon  those  who  court  her  most  assiduously  and 
with  the  most  unwearied  devotion.  This  Judge  Downer  did  do; 
consequently  he  became,  and  was  acknowledged  to  be,  a  thorough 
and  profound  lawyer.  In  his  arguments  before  this  court  he 
never  indulged  in  any  declamation  or  in  fine  speaking,  but  ad- 
dressed the  understanding  and  reason.  His  efforts  were  never 
enlivened  by  any  flashes  of  wit  or  humor,  nor  embellished  with 
any  eloquent  and  rhetorical  language.  His  arguments  were  plain, 
clear,  forcible,  and  learned.  His  manner  earnest,  direct, — at 
times,  owing  to  the  strength  of  his  convictions,  almost  dogmatic. 
But  when  he  closed  his  argument  you  were  sure  to  have  an  ex- 
haustive discussion  of  the  law  and  facts  on  his  side  of  the  case, 
all  presented  in  a  lucid  order  with  great  clearness  and  force  of 
reasoning. 

"On  Judge  Downer's  appointment  to  this  bench  he  brought  into 
exercise  the  same  useful  and  laborious  habits,  patient  industry, 
and  careful  examination  of  causes,  which  had  characterized  his 


238  The  Story  of  a  Great  Court 

practice  at  the  bar.  He  conscientiously  investigated  each  case 
for  himself  and  mastered  all  its  facts.  He  had  great  respect  for 
authority,  and  wished  to  walk  in  the  old  paths  of  the  common 
law;  super  antiques  vias  legis.  He  had  a  strong  sense  of  justice, 
and  thought  the  rights  of  parties  would  be  the  most  fully  pro- 
tected and  secured  by  a  rigid  adherence  to  settled  principles. 
Some  thought  he  was  too  technical  and  did  not  sufficiently  ap- 
preciate the  necessity  for  new  rules,  or  the  modification  of  old 
rules  to  meet  the  demands  of  modern  society  and  its  ever  chang- 
ing business  relations.  The  opinions  which  he  delivered  from 
this  bench  are  well  described  in  the  memorial  as  being  distin- 
guished for  the  soundness  of  their  logic,  the  depth  of  their  learn- 
ing, and  as  safe  and  valuable  precedents  and  expositions  of  the 
law.  He  remained  on  the  bench  for  about  three  years,  during 
which  period  he  left  in  the  published  reports  an  enduring  monu- 
ment to  his  industry,  discrimination,  and  exact  and  comprehen- 
sive learning.  To  say  that  he  was  honest  and  impartial  in  the 
discharge  of  his  duties  as  a  judge  may  be  faint  praise,  but  it  is 
true  nevertheless." 

Judge  Downer  was  elected  without  opposition  in  the 
spring  of  1865,  being  the  first  instance  of  that  kind  in  the 
history  of  the  Court,  and  remained  upon  the  Supreme  bench 
nearly  three  years,  during  which  time  many  important  ques- 
tions were  presented  to  the  Court  and  decided,  in  all  of 
which  he  took  his  full  share  of  the  burden.  Some  of  these 
cases  will  be  more  fully  referred  to  hereafter.  There  seems 
no  reason  to  doubt  the  correctness  of  Chief  Justice  Cole's 
estimate  of  his  abilities  as  a  judge.  It  seems  quite  certain, 
however,  that  he  did  not  entirely  enjoy  the  work  upon  the 
bench.  During  these  years  the  volume  of  work  began  to 
increase  with  considerable  rapidity,  and  evidently  the  labors 
of  the  bench  became  somewhat  onerous  to  him.  He  was 
in  easy  circumstances  financially,  and  in  the  fall  of  1867 
he  tendered  his  resignation  to  Governor  Fairchild,  to  take 
effect  on  the  tenth  day  of  September. 

Byron  Paine,  who  had  returned  from  the  war  in  May, 
1865,  was  again  practicing  law  in  Milwaukee,  and  Governor 


Paine*  s  Resignation  239 

Fairchild  without  hesitation  re-appointed  him  to  the  bench, 
an  act  which  was  universally  recognized  as  not  only  a  grace- 
ful act,  but  as  the  most  fitting  appointment  that  could  have 
been  made. 

By  virtue  of  this  appointment  the  state  regained  in  its 
service  the  ability  and  experience  of  Byron  Paine  upon  the 
bench  of  its  highest  court,  and  might  reasonably  hope  to 
retain  him  in  that  position  for  many  years,  for  he  was  then 
not  quite  forty  years  of  age. 


240  The  Story  of  a  Great  Court 


CHAPTER  XIX 

MORE   WAR  QUESTIONS 

In  a  former  chapter  a  number  of  very  important  cases, 
involving  questions  arising  out  of  or  closely  connected  with 
the  civil  war  in  its  earlier  stages  have  been  considered. 
There  were  other  questions  of  a  similar  character  which 
arose  later,  which  are  deserving  of  mention  and  which  will 
be  taken  up  in  the  present  chapter. 

The  first  cases  presenting  questions  arising  out  of  the 
civil  war  and  its  prosecution  were  two  cases  regarding  the 
validity  of  the  enlistment  of  minors  without  the  consent  of 
their  parents  or  guardians.1  The  federal  law  provided  that 
no  person  under  the  age  of  eighteen  should  be  mustered 
into  the  federal  service.  In  the  Gregg  case,  the  minor  was 
over  eighteen,  but  under  twenty-one  years  of  age,  and  had 
enlisted  without  the  consent  of  his  father,  and  it  was  held 
that  the  enlistment  was  valid ;  in  the  Higgins  case,  where 
the  enlisted  person  was  under  eighteen  years  of  age,  and 
had  so  stated  to  the  recruiting  officer,  but  was  enlisted  with- 
out his  father's  consent,  the  enlistment  was  held  unauthor- 
ized and  the  boy  was  discharged  from  military  control. 

On  the  25th  of  February,  1862,  the  President  approved 
an  act  of  Congress  authorizing  the  issuance  of  United 
States  treasury  notes,  familiarly  known  as  greenbacks,  and 
declaring  that  they  should  be  "a  legal  tender  in  payment  of 
all  debts,  public  and  private." 


1  In  re  Gregg,  15  Wis.  *479;   In  re  Higgins,  16  Wis.  *351. 


More  War  Questions  241 

The  question  whether  Congress  had  power  under  the 
Constitution  to  declare  anything  except  gold  and  silver  coin 
to  be  legal  tender  in  payment  of  pre-existing  obligations  was 
a  serious  and  much  mooted  one. 

It  was  squarely  raised  at  the  January  term,  1864,  in  a 
foreclosure  action  where  it  appeared  that  in  October,  1862, 
the  defendant  had  made  a  tender  of  the  full  amount  of  the 
debt  in  treasury  notes.2  The  lower  court  had  held  that  the 
tender  was  not  good  because  not  made  in  coin.  The  court, 
in  an  opinion  written  by  Judge  Paine,  sustained  the  validity 
of  the  act,  following  the  decision  of  the  Supreme  Court  of 
New  York  in  a  then  very  recent  case.3  In  the  New  York 
case  Chief  Justice  Denio  dissented  and  wrote  a  very  elabo- 
rate and  able  opinion.  Judge  Paine  in  his  opinion  first  says 
that  the  reasons  for  holding  the  act  valid  are  so  fully  set 
forth  in  the  opinions  in  the  New  York  case  that  it  would 
be  mere  repetition  to  re-state  them.  He  then  proceeds,  how- 
ever, to  take  up  the  dissenting  opinion  of  Chief  Justice 
Denio,  and  in  a  very  lucid  argument  attempts  to  demonstrate 
the  inconsistency  in  the  positions  taken  by  that  great  jurist. 
It  would  take  some  courage  to  attempt  to  show  that  an 
opinion  of  Chief  Justice  Denio  was  erroneous  in  its  logic, 
yet  that  is  what  Judge  Paine  did,  and  the  question  whether 
he  did  not  do  it  successfully  is,  I  think,  an  open  one.  Both 
opinions  are  worth  reading. 

It  will  be  remembered  that  the  Supreme  Court  of  the 
United  States  met  this  question  in  1869,  and  first  held  in  an 
opinion  by  Chief  Justice  Chase  that  the  act  was  void  as 
applied  to  pre-existing  debts,4  but  when  the  question  was 


2  Breitenbach  v.  Turner,  18  Wis.  *139. 

•'<  M.  B.  S.  &  L.  Bank  v.  Van  Dyck,  27  N.  Y.  400. 

*  Hepburn  v.  Griswold,  8  Wall.  603. 

16  - 


242  The  Story  of  a  Great  Court 

again  presented  in  the  following  year  the  Court,  after  sev- 
eral arguments  and  by  a  bare  majority,  overruled  the  Hep- 
burn case  and  affirmed  the  constitutionality  of  the  law 
against  very  strong  dissenting  opinions  by  Chief  Justice 
Chase,  and  Justices  Clifford,  Field  and  Nelson.5 

The  last  named  cases,  or  "the  legal  tender  cases,"  as  they 
were  familiarly  called,  aroused  much  criticism  at  the  time 
among  the  bar  and  the  people.  When  the  Hepburn  case 
was  decided  there  were  but  eight  justices  in  commission  and 
a  vigorous  dissent  was  filed  by  Justices  Miller,  Swayne,  and 
Davis ;  Mr.  Justice  Grier  was  physically  very  feeble  and, 
while  he  participated  in  the  consultation  room  in  the  deci- 
sion of  the  case,  had  already  sent  his  resignation  to  the 
President,  and  sat  for  the  last  time  on  January  31,  1870, 
two  days  after  the  decision. 

The  decision  in  the  Hepburn  case  was  disappointing  to 
the  government  and  to  the  people  generally,  and  was  not 
generally  accepted  as  final,  especially  in  view  of  the  feeble 
condition  of  Mr.  Justice  Grier,  who  voted  with  the  majority. 

The  two  vacancies  on  the  bench  were  filled  by  President 
Grant  by  the  appointment  of  William  Strong  of  Pennsyl- 
vania, February  18,  1870,  and  Joseph  P.  Bradley  of  New 
Jersey,  March  21,  1870.  It  was  currently  charged  by  the 
enemies  of  the  administration  at  the  time,  that  these  ap- 
pointments were  made  for  the  purpose  on  the  part  of  the 
President  of  packing  the  Court  in  order  to  prepare  the  way 
for  overruling  the  Hepburn  case.  Justices  Strong  and 
Bradley  were  very  able  men  who  were  entirely  worthy  of 
seats  on  the  Supreme  bench ;  the  charge  that  the  bench  was 
intentionally  packed  to  accomplish  the  reversal  of  the  Hep- 
burn case  was  one  easily  made  and  hard  to  disprove,  and 


5  Knox  v.  Lee,  12  Wall.  457. 


More  War  Questions  243 

the  fact  that  both  judges  voted  to  reverse  that  case  lent 
some  color  to  the  charge ;  it  may  probably  be  safely  assumed 
that  the  President  took  care  not  to  appoint  any  jurist  known 
to  be  hostile  to  the  law,  but,  on  the  other  hand,  it  cannot 
be  supposed  for  a  moment  that  he  went  further  than  this. 

At  the  January  term,  1865,  another  federal  war  measure 
came  before  the  Court,  namely,  the  stamp  act  of  July  1, 
1862,  which  provided,  among  other  things,  for  the  affixing 
of  stamps  to  ''writs  or  other  original  process  by  which  any 
suit  is  commenced  in  a  court  of  record."  6 

The  action  in  which  the  validity  of  the  law  was  attacked 
had  been  dismissed  in  the  circuit  court  because  no  stamp 
had  been  affixed  to  the  appeal  papers,  and  the  sole  question 
in  the  supreme  court  was  whether  the  dismissal  was  right. 
The  Court  held  that  the  provision  in  question  was  void  be- 
cause such  writs  or  other  processes  were  the  essential  means 
by  which  the  state  governments  exercise  their  judicial  func- 
tions, and  hence  must  be  exempt  from  taxation  by  the  fed- 
eral government ;  otherwise  the  federal  government  must 
have  the  power  to  tax  all  the  means  used  by  state  govern- 
ments to  carry  out  their  duties,  and  if  it  has  the  power  to 
tax,  it  has  the  power  to  tax  to  excess,  and  thus  destroy  the 
ability  of  the  state  governments  to  perform  their  functions. 

The  opinion  in  this  important  case  was  written  by  Judge 
Cole,  and  is  an  example  of  his  logical  reasoning  and  terse 
but  clear  judicial  style  at  its  best. 

In  this  case  Judge  Downer  dissented  and  wrote  an  able 
opinion  which  is  also  well  worth  reading  in  connection  with 
Judge  Cole's  opinion.  Judge  Downer's  position  was  that 
the  tax  was  in  no  sense  a  tax  on  the  instrumentalities  of  the 
government,  but  on  the  individual  who  commences  a  law- 


0  Jones  v.  Estate  of  Keep,  19  Wis.  *369. 


244  The  Story  of  a  Great  Court 

suit.  He  instances  the  fact  that  the  state  levies  a  tax  of 
one  dollar  on  every  civil  suit  commenced  in  a  court  of 
record,  but  that  this  tax  had  never  been  supposed  to  be  a 
tax  on  the  instrumentalities  of  government,  and  says,  "The 
idea  that  underlies  both  the  state  and  United  States  law 
*  *  *  is  that  the  individual  suitor  is  taxed.  *  *  *  It 
is  a  tax  on  the  person  who  caused  the  lawsuit,  who  is  in 
the  wrong,  and  against  whom  the  aid  of  the  state  is  in- 
voked." 

The  same  federal  law  required  stamps  to  be  put  on  every 
deed  of  conveyance  of  land,  and  the  question  whether  this 
covered  tax  deeds  executed  under  the  laws  of  the  state  was 
presented  at  the  September  term,  1867,7  and  the  Jones  case 
was  followed  in  an  opinion  by  Judge  Dixon,  who  briefly 
says,  "We  are  of  opinion  that  Congress  possesses  no  con- 
stitutional power  without  the  assent  of  the  states  to  tax  the 
means  or  instruments  devised  by  the  states  for  the  purpose 
of  collecting  their  own  revenues ;  and  for  our  reasons  in 
support  of  this  conclusion  we  refer  to  the  opinion  of  this 
Court  in  the  case  of  Jones  v.  The  Estate  of  Keep." 

Another  important  question  arising  at  the  close  of  the 
war  was  the  question  of  the  validity  of  the  state  law  of 
1865  (Chap.  14),  authorizing  towns,  villages  and  cities  to 
levy  taxes  to  pay  bounties  (not  exceeding  $200)  to  men  who 
might  have  enlisted  or  should  thereafter  enlist  under  the 
call  of  the  President  for  300,000  men  made  in  December, 
1864,  or  any  subsequent  call.8  The  act  also  provided  for 
payment  of  bounties  to  persons  who  before  being  drafted 
furnished  substitutes,  and  for  giving  pecuniary  aid  to  the 
families  of  volunteers  and  drafted  men. 


•  Sayles  v.  Davis,  22  Wis.  *225. 

s  Brodhead  v.  Milwaukee,  19  Wis.  *624. 


More  War  Questions  245 

The  main  argument  here  was  that  such  purposes  could  not 
be  said  to  be  public  or  municipal  purposes,  but  purely  private 
purposes ;  that  it  was  taking  the  money  of  citizens  at  large 
and  giving  it  to  an  individual,  the  public  being  in  no  legal 
sense  benefited  by  the  transaction.  Following  a  Pennsyl- 
vania case  then  recently  decided,9  the  Court  sustained  the 
law  in  an  opinion  by  Chief  Justice  Dixon,  against  a  sharp 
dissent  by  Judge  Downer,  who  was  of  opinion  that  as  to 
volunteers  who  had  enlisted  before  the  voting  of  the  tax 
the  law  was  void,  because  the  city  or  town  had  no  special 
public  interest  in  the  payment  of  such  bounties ;  he  also 
thought  the  law  was  by  its  terms  inapplicable  to  the  city 
of  Milwaukee. 

An  echo  of  the  Ozaukee  draft  riots  of  1863  was  heard  at 
the  January  term,  1867,  in  a  case  in  which  one  of  the  persons 
who  was  resisting  the  draft  and  was  arrested  and  detained 
for  a  time  sued  ex-Governor  Salomon  for  false  imprison- 
ment.10 The  Governor  justified  his  action  on  the  ground 
that  he,  as  Governor,  was  enforcing  the  draft  laws  and  law- 
fully used  the  discretionary  authority  conferred  upon  him 
by  the  President  under  the  provisions  of  the  draft  laws  of 
the  United  States.  In  the  trial  court  judgment  went  for 
the  defendant,  and  that  judgment  was  affirmed  by  the  Su- 
preme Court  in  an  opinion  by  Judge  Downer,  in  which  the 
Governor's  contention  was  fully  sustained. 

An  extract  from  the  opinion  will  give  an  idea  of  Judge 
Downer's  pithy  and  terse  style : 

"It  is  clear  that  the  defendant  did  not  transcend  the  discre- 
tionary authority  conferred  upon  him.  His  acts  must  therefore 
be  regarded,  in  a  certain  sense,  as  the  acts  of  the  president.  The 
same  principles  apply  to  his  defense  as  would  to  that  of  a  mili- 


"  Speer  v.  Blairsville,  r,0  Pa.  St.  150. 
if>Druecker  v.  Salomon,  21  Wis.  *621. 


246  The  Story  of  a  Great  Court 

tary  commander,  if  sued  for  acts  by  him  done  in  fighting  a  battle 
to  put  down  an  insurrection  or  rebellion. 

"But  it  is  said,  such  executive  power  is  dangerous  to  liberty. 
Admit  it.  It  is  also  absolutely  necessary  to  every  free  govern- 
ment. Ever  since  the  downfall  of  the  feudal  aristocracies  of 
Europe,  the  champions  of  freedom  have  labored  so  to  limit  execu- 
tive power  as  to  prevent  usurpation  and  despotism;  and  they 
have  succeeded  in  England  and  in  this  country,  by  throwing 
around  it  various  checks  and  safeguards.  Not  one  of  these 
would  we  remove,  or  do  aught  to  impair  its  efficiency.  While, 
however,  executive  power  is  dangerous  to  liberty,  no  government 
has  ever  existed  long  without  it.  Without  it,  in  the  great  crises 
which  await  every  nation,  government  dissolves  in  anarchy." 

Probably  the  most  interesting  case  decided  by  the  Court 
at  this  period  was  the  case  involving  the  question  of  the 
right  of  negroes  to  vote.11  The  decision  in  favor  of  the  right 
came  as  a  great  surprise  to  the  greater  part  of  the  people 
of  the  state,  and  in  order  to  understand  how  it  came  about 
and  why  it  was  a  great  surprise  it  is  necessary  to  hark  back 
to  constitutional  times. 

Section  i  of  Article  III  of  the  State  Constitution,  after 
enumerating  the  various  classes  of  citizens  entitled  to  vote, 
provides  that  the  legislature  may  at  any  time  by  law  extend 
the  right  to  others,  but  that  no  such  law  shall  be  effective 
until  submitted  to  vote  "at  a  general  election  and  approved 
by  a  majority  of  all  the  votes  cast  at  such  election." 

The  legislature  of  1849  passed  an  act  (Chapter  137)  con- 
ferring the  right  of  suffrage  on  all  colored  male  residents 
over  twenty-one  years  of  age,  provided  that  a  majority  of 
all  votes  cast  at  the  general  election  in  November  of  that 
year  should  be  cast  in  favor  of  such  extension  of  the  right. 

The  question  was  submitted  at  this  election,  separate  bal- 
lots and  ballot  boxes  being  provided.  The  great  majority 
of  the  electors  voting  did  not  take  interest  enough  in  the 


11  Gillespie  v.  Palmer,  20  Wis.  *544. 


More  War  Questions  247 

question  to  vote  upon  it.  The  total  votes  cast  for  Governor 
was  nearly  32,000,  of  which  Dewey  (Dem.)  received  16,649, 
Collins  (Whig-)  11,317,  and  Chase  (Free  Soil)  3,761.  But 
upon  the  question  of  negro  suffrage  only  9,330  votes  were 
cast,  of  which  5,265  were  for  and  4,075  against  the  exten- 
sion of  the  ballot  to  the  negro. 

There  were  very  few  who  claimed  that  a  majority  of 
all  the  votes  cast  at  the  election  had  been  cast  in  favor  of 
the  proposition.  True  there  were  some  ardent  negro  sym- 
pathizers who  held  this  view,  and  among  them  was  Sherman 
M.  Booth  of  Milwaukee,  who  argued  in  the  columns  of  the 
Free  Democrat  that  because  a  majority  of  the  votes  cast 
upon  the  subject  were  favorable  the  proposition  had  carried. 
He  found  very  few  who  agreed  with  him,  however,  and 
when  the  state  board  of  canvassers  made  the  official  canvass 
in  December  they  certified  that  the  whole  number  of  votes 
cast  was  31,759  (this  being  the  total  vote  cast  for  the  state 
office  for  which  the  great  number  of  votes  was  cast),  of 
which  5,265  were  cast  in  favor  of  equal  suffrage  to  colored 
persons  and  4,075  were  cast  against  equal  suffrage  to  col- 
ored persons.12 

This  was  virtually  a  determination  that  the  proposition 
had  been  defeated,  and  it  was  accepted  by  press  and  public 
generally  as  the  end  of  the  matter. 

When  the  general  revision  of  the  statutes  was  made  in 
1858  no  one  claimed  that  the  negro  suffrage  law  of  1849  was 
a  part  of  the  state  law  of  the  state,  and  no  notice  was  taken 
of  it.  The  negroes  themselves  did  not  suppose  that  they 
possessed  the  right  to  vote,  and  made  no  claim  to  it,  except 
perhaps  in  some  few  cases. 


12  Wisconsin  Express,  Madison,  Dec.  25,  1849. 


248  The  Story  of  a  Great  Court 

So  universal  was  the  impression  that  the  law  of  1849  had 
been  rejected  by  the  people  that  the  Republican  legislature 
of  1865  passed  an  act  (Chap.  414)  providing  for  submission 
of  the  question  again  to  the  people.  This  time  it  was  pro- 
vided that  the  vote  should  be  upon  the  regular  ballot  and 
cast  in  the  regular  ballot  boxes,  so  that  there  would  be  less 
danger  of  an  insignificant  number  of  votes  being  cast. 

There  was  much  difference  of  opinion  in  the  Republican, 
or  Union,  party,  as  it  was  then  called,  and  the  platform  of 
that  year  contained  no  reference  to  the  question. 

As  finally  canvassed  the  vote  on  the  proposition  stood 
46,588  in  favor  and  55,591  against  it,  thus  defeating  it,  al- 
though Lucius  Fairchild,  the  Union  candidate  for  Governor, 
was  elected  by  a  majority  of  about  10,000.  This  time  it 
was  defeated  by  a  clear  majority  of  all  the  votes  cast,  what- 
ever theory  of  the  meaning  of  that  expression  might  be 
adopted. 

It  seemed  that  the  question  had  been  set  at  rest  for  a  time, 
but  not  so.  There  were  those  who  still  believed  that  the 
law  of  1849  had  been  in  fact  constitutionally  approved  by  a 
majority  of  all  the  votes  cast,  and  among  these  was  Byron 
Paine,  who  was  now  again  practicing  law  at  Milwaukee, 
having  returned  from  the  war.  Whether  it  was  on  his 
suggestion  or  not  I  do  not  know,  but  at  the  November  elec- 
tion of  1865  a  negro  named  Gillespie,  who  possessed  all  the 
qualifications  of  an  elector,  except  the  Caucasian  blood,  if 
that  was  necessary,  presented  himself  at  the  polls  in  Mil- 
waukee, offered  his  vote,  and  upon  its  rejection  sued  the 
inspectors  for  damages  for  the  wrong  done  him. 

Byron  Paine  brought  the  action  and  put  his  whole  heart 
in  it  as  he  had  put  it  in  the  Booth  case  eleven  years  before. 


More  War  Questions  249 

He  was  then  fighting  to  make  the  negro  a  freeman ;  he  was 
now  fighting  to  insure  to  the  negro  the  necessary  weapons 
of  the  freeman.  A  demurrer  to  the  complaint  was  sus- 
tained in  the  circuit  court,  but  upon  appeal  the  Supreme 
Court  unanimously  held  that  the  law  of  1849  was  approved 
by  the  people,  because  a  majority  of  all  the  votes  cast  upon 
that  subject  were  cast  in  favor  of  the  proposition. 

Judge  Downer  wrote  the  opinion  of  the  Court,  and  it  is 
undoubtedly  one  of  the  most  important  opinions  which  he 
wrote  during  his  brief  term  on  the  bench.  There  may  well 
be  two  ideas  as  to  the  abstract  correctness  of  the  holding, 
but  the  arguments  in  its  favor  are  certainly  strong,  and  it 
has  been  accepted  in  Wisconsin  as  settling  the  law  on  the 
subject  of  the  number  of  votes  required  to  carry  any  ques- 
tion submitted  to  vote  of  the  people  ever  since  its  rendition. 

Thus  it  came  about  that  just  after  the  white  voters  of  the 
state  thought  they  had  decided  by  a  decisive  vote  that  the 
ballot  should  not  be  extended  to  the  colored  man,  they  woke 
up  one  morning  to  find  that  for  sixteen  years  the  colored 
man  had  been  and  still  was  a  legal  voter.  It  was  something 
more  than  a  surprise — it  amounted  to  a  practical  joke  upon 
an  entire  state. 


250  The  Story  of  a  Great  Court 


CHAPTER  XX 

CHIEF   JUSTICE   DIXON'S   RESIGNATION,    REAPPOINTMENT   AND 
RE-ELECTION 

Chief  Justice  Dixon  was  not  a  good  business  man ;  he 
was  careless  of  money  and  was  always  hard  up.  The  salary 
of  a  Justice  of  the  Supreme  Court  was  fixed  by  the  law 
creating  the  Court  in  1852  at  $2,000.  This  amount  had 
been  increased  by  Chapter  102  of  the  laws  of  1857  to  $2,500. 

Upon  this  princely  income  the  Chief  Justice  had  lived  and 
supported  his  family  since  his  appointment  in  1859,  each 
year  seeing  his  needs  increase  and  his  income  decrease  as 
greenbacks  diminished  in  purchasing  power.  It  is  said  that 
Mrs.  Dixon  bestowed  upon  him  the  title  of  "Cheap"  Justice, 
and  she  was  well  justified  in  doing  so,  but  the  gibe  was  too 
grimly  truthful  to  be  very  humorous. 

The  niggardliness  of  the  salary  was  faintly  appreciated  by 
the  legislature  of  1867,  and  they  passed  a  brief  act  (Chap. 
33)  fixing  the  salary  of  any  Justice  "hereafter  elected  or 
appointed"  at  $3,500.  This  act  was  approved  March  21, 
1867,  and  was  published  and  went  into  effect  March  26th. 
Under  the  constitutional  provision  forbidding  any  increase 
or  diminution  of  the  compensation  of  any  public  officer 
"during  his  term  of  office"  1  the  act  could  not  have  been 
made  applicable  to  persons  holding  office  at  the  time  of  its 
passage  during  their  existing  terms.  By  universal  preced- 
ent, however,  it  had  been  considered  that  if  a  person  was 


1  Const.  Wis.  Sec.  26,  Art.  IV. 


Dixon's  Resignation  and  Reappointment  251 

appointed  to  fill  a  vacancy  he  could  lawfully  receive  the  in- 
creased salary,  even  though  the  law  increasing  the  same  was 
passed  during  the  part  of  the  original  term  which  his  pred- 
ecessor held.2 

Chief  Justice  Dixon's  term  was  not  to  expire  until  Jan- 
uary, 1870,  and  thus  it  seemed  certain  he  would  get  no 
benefit  from  the  increase  of  salary  until  after  his  re-election 
in  the  spring  of  1869, — but  under  all  the  precedents  if  he 
were  to  resign  and  some  third  person  were  to  be  appointed 
to  fill  out  the  term  such  third  person  would  be  entitled  to 
the  increased  salary.  Such  being  the  case  there  was  no 
reason  in  law  why  he  might  not  resign  and  leave  the  matter 
of  an  appointment  in  the  hands  of  the  Governor.  If,  after 
his  resignation  had  been  accepted  and  his  term  of  office 
closed,  the  Governor  chose  to  reappoint  him  he  would,  if  he 
accepted  the  reappointment,  be  serving  another  term  and 
would  be  lawfully  entitled  to  draw  the  increased  salary.  He 
had  nearly  three  years  yet  to  serve  at  the  beggarly  salary 
of  $2,500,  if  he  let  the  matter  pursue  its  natural  course. 
Under  these  circumstances  he  concluded  to  resign,  and  he 
presented  his  resignation  to  Governor  Fairchild  March  27, 
1867,  who  accepted  it  and  upon  the  same  day  reappointed 
him.3  There  can  be  little  question  but  what  this  course  was 
anticipated  by  the  legislature  when  the  law  was  passed,  nor 
can  there  be  any  question  but  that  the  people  generally  rec- 
ognized the  pitiful  meagreness  of  the  former  salary.  The 
act  was  not  seriously  criticised  at  the  time,  but  was  later 
on  as  we  shall  see. 

Concerning  the  ethics  of  the  matter,  the  writer  has  but 
a  word  to  say.     If  Judge  Dixon  resigned  without  communi- 


2  State  v.   Frear,  138   Wis.   536. 

a  Records  of  Executive  Office,  Wisconsin. 


252  The  Story  of  a  Great  Court 

cation  or  arrangement  with  the  Executive,  and  simply  ran 
his  risk  of  reappointment  no  just  criticism  of  his  action 
can  be  made  by  anyone. 

I  have  information,  however,  which  I  cannot  doubt,  that 
prior  to  his  resignation  he  told  at  least  one  friend  that  he 
was  certain  that  he  would  be  reappointed.  This  means,  of 
course,  that  either  he  or  someone  for  him  had  been  assured 
by  the  Governor  of  reappointment ;  this  is  assumed  to  be 
the  fact  by  the  opinion  in  the  case  of  State  v.  Frcar,  supra. 
I  have  always  felt  great  reverence  for  Chief  Justice  Dixon, 
both  as  a  lawyer  and  as  a  man ;  I  have  also  felt  high  regard 
for  Governor  Fairchild,  but  if  it  be  a  fact  that  it  was  ex- 
pressly or  impliedly  arranged  between  them  that  the  Chief 
Justice  should  resign  and  be  at  once  reappointed  it  seems 
to  me  that  the  result  was  a  successful  evasion  of  the  con- 
stitutional provision  inhibiting  the  change  of  compensation 
during  an  officer's  term  of  office.  I  should  greatly  prefer 
that  it  had  never  taken  place. 

However,  the  whole  matter  was  soon  to  go  before  the 
people  for  their  verdict,  for  the  appointment  only  held  until 
the  following  spring,  and  it  was  necessary  that  the  Chief 
Justice  should  be  re-elected  in  the  spring  of  1868,  if  he  were 
to  serve  out  the  full  term  for  which  he  was  elected  in  1863. 

In  passing  it  is  interesting  to  notice  that  Judge  Cole  was 
re-elected  in  the  spring  of  1867  substantially  without  oppo- 
sition. It  is  true  that  Lucien  P.  Wetherby  of  Hudson,  who 
had  been  circuit  judge  of  the  eighth  circuit  from  1861  up 
to  1867,  received  8,239  votes  for  the  position,  but  he  made 
no  campaign  and  was  not  in  fact  a  candidate,  but  is  under- 
stood to  have  supported  Judge  Cole.  Judge  Cole  received 
46,895  votes  ;  it  is  probable  that  the  vote  for  Judge  Wetherby 
was   principally  made  up   of   farm   mortgagors   and  their 


LUTHER  SWIFT  DIXON. 
At  the  age  of  60  years. 


Dixon's  Resignation  and  Reappointment  253 

friends,  who  could  neither  forgive  nor  forget  the  decision 
upon  the  farm  mortgage  relief  laws. 

Judge  Downer  having  resigned  in  September,  1867,  and 
Judge  Paine  having  been  appointed  to  fill  the  vacancy,  it 
became  necessary  to  elect  two  Justices  in  the  spring  of  1868. 
There  was  no  doubt,  of  course,  that  both  Dixon  and  Paine 
would  be  candidates  to  succeed  themselves,  they  would  not 
have  accepted  appointments  if  they  did  not  desire  election 
in  the  spring.     The  Democrats  had  had  no  representative 
upon  the  bench  since  the  retirement  of  Judge  Smith  in  1859 ; 
while  they  were  in  the  minority  in  the  state,  the  difference 
between  the  two  parties  was  only  a  few  thousands,  and  it 
seemed  to  many  of  them  that  if  there  was  anything  in  the 
principle  of  non-partisanship  in  the  selection  of  Judges  it 
ought  to  be  a  principle  which  would  work  both  ways  once 
in  awhile.     There  had  been  some  Democratic  successes  in 
the  state  elections  in  the  fall  of   1867,  and  the  leaders  of 
the  party  determined  to  take  the  gambler's  chance  and  nom- 
inate two  candidates  and  gain  control  of  the  bench  if  pos- 
sible.    The  chance   was  by  no  means   a   forlorn   one;  the 
farm  mortgage  feeling  against  the  Judges  who  had  ren- 
dered the  unpopular  judgments  was  still  very  bitter,  while 
the  matter  of  the  resignation  and  reappointment  of  Dixon 
was  a  card  which  might  prove  of  considerable  strength,  and 
the  negro  suffrage  decision  was  regarded  as  unpopular. 

The  Democratic  state  central  committee  called  a  state 
convention  to  meet  February  19,  1868,  for  the  purpose 
among  other  things  of  nominating  candidates  for  Chief  Jus- 
tice and  Associate  Justice.  The  Republican  convention  was 
called  one  week  later  for  the  same  purposes. 

At  the  Democratic  convention  Charles  Dunn,  the  Conner 
Chief  Justice  of  the  territorial  court,  then  sixty-eight  years 


254  The  Story  of  a  Great  Court 

of  age,  was  named  for  Chief  Justice,  and  E.  Holmes  Ellis 
of  Green  Bay  for  Associate  Justice.  At  the  "Republican 
Union"  convention  held  one  week  later,  Chief  Justice  Dixon 
and  Judge  Paine  were  renominated,  but  the  nomination  of 
Judge  Dixon  was  not  made  without  a  struggle. 

Circuit  Judges  William  P.  Lyon  of  the  first  circuit,  and 
Joseph  T.  Mills  of  the  fifth  circuit  were  placed  in  nomina- 
tion for  the  Chief  Justiceship.  Judge  Lyon  was  strongly 
urged  by  A.  H.  Barnes  of  Walworth  County,  O.  S.  Head  of 
Kenosha  and  Stoddard  Judd  of  Milwaukee,  in  speeches 
which  expressed  great  apprehension  that  Judge  Dixon  could 
not  be  elected  if  nominated.  On  the  informal  ballot  Dixon 
received  140  votes,  Lyon  92  and  Mills  27.  Judge  Dixon, 
having  shown  greater  strength  than  both  of  the  other  can- 
didates, was  on  motion  of  Mr.  Barnes  of  Walworth  County 
unanimously  nominated.  Following  this  nomination,  Judge 
Paine  was  nominated  by  acclamation,  and  the  campaign 
was  on. 

For  the  first  time  since  the  election  of  1852  the  control 
of  the  bench  was  at  stake  at  a  single  election.  The  ap- 
proaching presidential  election  added  earnestness  to  the 
struggle,  for  the  prestige  of  victory  in  the  spring  would 
mean  much  in  the  fall  campaign,  and  the  contest  became  bit- 
terly partisan,  as  well  as  bitterly  personal.  Judge  Dixon 
had  been  through  two  heated  contests,  but  he  was  now 
to  enter  a  fight  more  rancorous  and  abusive  than  either 
of  the  others.  Judge  Dunn  was  of  Kentucky  birth 
and  had  always  been  an  unswerving,  if  not  an  ex- 
treme, Democrat ;  he  had  voted '  for  Breckenridge  in 
i860.  In  the  spring  of  1868  the  passions  and  prejudices 
aroused  by  the  civil  war  were  still  at  fever  heat  and  the 
word  "copperhead"  was  readily  applied  to  anyone  whose 


Dixon's  Resignation  and  Reappointment  255 

views  did  not  coincide  with  those  of  the  dominant  party. 
Judge  Dunn  was  immediately  assailed  by  the  Republican 
press  as  a  secessionist  at  heart  and  a  "copperhead"  in  fact ; 
he  was  also  accused  of  being  immoderate  in  his  use  of 
liquors.  But  the  personal  abuse  did  not  stop  here.  As  has 
been  said,  Judge  Dunn  was  more  than  sixty-eight  years  of 
age ;  he  had  seen  twelve  years  service  on  the  territorial 
bench,  but  that  service  had  closed  in  1848,  since  which  time 
he  had  been  practicing  law  at  the  old  territorial  capital, 
Belmont,  where  he  resided;  it  was  charged  that  he  was 
"a  superannuated  pro-slavery  fossil,"  that  he  had  not  kept 
up  with  the  times,  that  he  was  ignorant  of  code  practice, 
that  he  had  been  unable  to  practice  his  profession  with  suc- 
cess under  it. 

It  will  be  remembered,  perhaps,  that  he  was  a  member 
of  the  second  constitutional  convention,  and  acted  as  chair- 
man of  the  judiciary  committee,  and  thus  exerted  great  in- 
fluence in  the  molding  of  the  constitution.  He  strongly  op- 
posed that  clause  of  the  constitution  giving  foreigners  the 
right  of  suffrage  after  one  year's  residence  in  the  state, 
and  favored  a  residence  of  five  years.  Whether  his  views 
would  not  prevail  were  the  question  to  be  presented  now 
is  at  least  an  open  question.  However,  in  1868  the  feeling 
was  decidedly  the  other  way,  and  embittered  appeals  were 
made  to  foreign  born  voters  to  defeat  the  man  who  had 
wished  to  restrict  or  postpone  the  exercise  of  the  right  of 
suffrage  by  newcomers. 

The  entire  injustice  of  the  personal  abuse  of  Judge  Dunn 
may  be  best  demonstrated  by  reading  the  tributes  to  his 
character  presented  to  the  Supreme  Court  after  his  death 
in  1872,  and  the  telling  reply  thereto  by  Judge  Cole,  who 
had  known  him  from  the  early  days.4 

4  30  Wis.  21. 


256  The  Story  of  a  Great  Court 

The  Democrats,  on  the  other  hand,  were  not  slow  to  reply 
in  kind.  They  at  once  attacked  Judge  Dixon's  resignation 
and  reappointment  as  a  palpable  violation  of  the  spirit,  if 
not  of  the  letter  of  the  constitution.  This  attack  had  enough 
of  truth  in  it  to  make  Judge  Dixon's  supporters  wince,  and 
several  replies  going  over  the  whole  matter  and  justifying 
the  action  from  a  legal  standpoint  were  published  in  the 
Republican  papers,  of  which  one  of  the  most  satisfactory 
will  be  found  as  an  editorial  in  the  State  Journal  of  January 
16,  1868. 

While  the  organ  of  the  farm  mortgagors  had  suspended 
publication  and  many  of  the  farmers  had  settled  with  the 
holders  of  the  mortgages,  the  feeling  among  the  victims 
was  still  strong  against  the  judges  who  had  upheld  the  law 
of  contracts,  and  prevented  the  legislation  for  their  relief 
to  become  effective.  Revenge  might  perhaps  be  had,  if  not 
relief.  The  Democratic  press  fostered  these  bitter  feelings 
as  much  as  possible  and  revived  the  old  charge  that  the 
judges  had  favored  stock  jobbers  and  railroad  corporations 
by  applying  extreme  rules  of  law  in  their  favor.  Thus  the 
charge  was  made  by  the  Jefferson  County  Banner  that 
"Dixon  and  Paine  have  decided  that  to  be  valid  in  favor 
of  railroad  corporations  which  they  have  asserted  to  be 
void  between  individuals,"  referring  to  the  case  of  Crosby 
v.  Roub,  16  Wis.  *6i6.5  This  charge  was  of  course  false, 
as  examination  of  the  case  discloses.  Just  prior  to  the 
election  a  broadside  was  widely  circulated  through  the  farm 
mortgage  country,  reciting  the  wrongs  heaped  on  the  farm 
mortgagors  by  the  Court,  ascribing  to  Judge  Dunn  the 
authorship  of  Chapter  49  of  the  laws  of  1858,  which  was 
declared  unconstitutional  in  the  Cornell  case,8  and  appeal- 


5  Wisconsin  State  Journal,  March  28,  1868. 
e  Cornell  v.  Hichens,  11  Wis.  *353. 


Dixon's  Resignation  and  Reappointment  257 

ing  in  impassioned  phrases  to  the  farm  mortgagors  to  vote 
against  the  judges  who  had  wrought  the  mischief.7 

This  circular  was  signed  "Farm  Mortgagor,"  and  was 
addressed  to  "Brother  Farm  Mortgagors:"  a  few  sen- 
tences from  it  will  show  its  bitter  character : 

"Every  lawyer  in  the  state  (except  those  employed  against  us) 
has  told  us  that  we  have  a  good  defence;  every  circuit  judge  be- 
fore whom  any  of  these  farm  mortgage  suits  have  been  tried 
has  decided  our  defence  to  be  good.  Dixon  himself  while  at  the 
bar  so  advised  his  clients,  and  so  decided  while  sitting  as  Judge 
of  the  Circuit  Court  of  Jefferson  County.  Why  did  Dixon,  when 
he  got  upon  the  bench  of  the  Supreme  Court  so  suddenly  change 
his  mind.  Let  him  who  can  answer.  Shall  we  meekly  bow  the 
head  and  kiss  the  hand  that  scourged  us?  Are  railroad  swindlers 
and  eastern  sharks  to  be  preferred  to  honest  men?     *     *     * 

"Brothers,  let  us  forget  party  in  this  contest,  let  us  remember 
our  wrongs,  our  losses,  and  our  sufferings.  We  have  been  in 
their  hands,  they  are  now  in  ours.  Let  us  show  them  the  same 
mercy  that  they  in  our  great  trouble  showed  to  us.  It  is  time 
that  they  should  at  least  taste  the  bitter  bread  that  they  have 
so  long  compelled  us  to  eat." 

The  Milwaukee  Sentinel  of  March  24,  1868,  urged  the 
election  of  Dixon  and  Paine  in  order  to  maintain  the  stabil- 
ity of  the  Court  in  analogy  to  the  Supreme  Court  of  the 
United  States,  where  the  appointments  are  for  life,  and  de- 
fended Judge  Dixon's  action  in  resigning  after  the  act  in- 
creasing the  salaries. 

There  was  evidently  fear  of  defeat  in  the  Republican 
party  management,  as  is  well  shown  by  the  issuance  of  a 
long  circular  to  the  voters  on  the  23rd  of  March,  1868.  In 
this  circular  the  Republican  State  Central  Committee  charge 
the  Democrats  with  the  responsibility  for  the  partisan  con- 
test which  is  on  and  say  that  however  desirable  it  may  be 
that  partisan  considerations  should  be  dropped  when  judi- 
cial officers  are  to  be  chosen,  it  is  impracticable  to  do  so 


7  Wisconsin  State  Journal,  April  9,  1868. 
17 


258  The  Story  of  a  Great  Court 

while  one  political  party  insists  on  making  such  considera- 
tions paramount  to  all  others.  It  is  then  charged  that  the 
chief  reasons  why  the  Democrats  now  wish  to  elect  Dunn 
and  Ellis  are  (i)  because  a  presidential  election  is  at  hand, 
and  a  victory  in  the  spring  would  give  the  party  prestige 
not  only  in  the  state  but  in  the  whole  country,  and  (2)  be- 
cause, if  elected,  Dunn  and  Ellis  would  be  expected  to  re- 
verse the  negro  suffrage  decision.  The  address  concludes 
by  warning  Republicans  of  the  danger  and  appealing  to 
them  to  work  hard  to  keep  Wisconsin  in  line  staunch  and 
true.8 

The  negro  suffrage  decision  of  1866  also  provoked  much 
criticism  on  the  part  of  the  Democratic  press.  Examina- 
tion of  the  files  of  the  Milwaukee  News  (which  was  then 
the  principal  Democratic  newspaper  of  the  state)  for  the 
months  of  February,  March  and  April,  1868,  will  show  the 
scope  and  course  of  the  Democratic  campaign.  It  consisted 
principally  of  violent  criticism  of  the  Judges  for  their  de- 
cisions in  the  cases  of  great  public  interest  which  had  been 
presented  to  them,  denouncing  such  decisions  as  either  fool- 
ish or  corrupt.  The  decisions  principally  attacked  were, 
the  railroad  tax  decisions,  the  farm  mortgage  decisions,  the 
decision  as  to  the  soldiers'  right  to  vote,  and  the  negro 
suffrage  decision.  An  anonymous  correspondent  of  the 
Milwaukee  News  of  March  18,  1868,  thus  refers  to  the  last 

named  decision: 

"The  negro  suffrage  question,  after  having  been  repeatedly  de- 
feated before  the  people  and  such  decision  of  the  people  acquiesced 
in  by  the  whole  people  with  no  dissenting  voice  for  over  fifteen 
years,  was  decided  by  the  Court  in  a  trumped  up  case  against 
the  plain  accepted  commonsense  meaning  of  the  constitution  in 
a  way  that  pleased  the  party  in  power." 


s  Milwaukee  Sentinel,  March  28,  1868. 


Dixon's  Resignation  and  Reappointment  259 

The  same  correspondent  refers  to  the  resignation  and 
the  railway  tax  decisions  as  follows : 

"One  judge  goes  through  the  farce  of  resignation  and  reap- 
pointment to  pocket  an  extra  $1,000.  Another  makes  up  and 
writes  out  an  argument  against  the  constitutionality  of  a  law, 
and  then  on  the  score  of  policy  decides  against  his  own  argu- 
ment." 

The  storm  raged  most  fiercely  about  Dixon's  devoted 
head;  the  fight  between  Paine  and  Ellis  was  only  an  ac- 
cessory to  the  principal  battle  between  Dixon  and  Dunn. 

For  two  or  three  days  after  the  election  it  was  claimed 
by  the  Democrats  that  the  result  was  in  doubt,  but  there 
was  really  no  substantial  doubt  at  any  time  of  the  re-elec- 
tion of  Dixon  and  Paine,  although  not  by  large  majorities. 
The  final  count  showed  that  in  a  vote  of  a  trifle  over 
138,000  Judge  Dixon  had  a  majority  of  6,777,  and  Judge 
Paine  a  majority  of  5,765. 

In  the  matter  of  the  resignation  and  reappointment  Judge 
Dixon  had  literally  put  "himself  upon  the  country,"  and 
the  country  had  vindicated  him. 

This  was  his  last  campaign ;  he  was  re-elected  for  a  full 
term  in  the  spring  of  1869  without  opposition,  and  probably 
could  have  remained  upon  the  bench  for  many  years  with- 
out further  serious  opposition.  He  had  successfully  with- 
stood the  temproray  gusts  of  feeling  and  passion  aroused 
by  the  fugitive  slave  law  question,  and  the  farm  mortgage 
question,  and  had  demonstrated  his  paramount  fitness  for 
the  bench  by  not  moving  a  hair's  breadth  from  the  line  of 
duty,  notwithstanding  public  clamor.  From  this  time  out 
he  was  to  reap  the  reward  of  his  manhood  and  independ- 
ence;  with  each  succeeding  year  his  state  has  view  with 
greater  pride  and  satisfaction  the  judicial  career  of  Luther 
S.  Dixon. 


260  The  Story  of  a  Great  Court 


CHAPTER  XXI 

THE  LAST  APPEARANCE  OF  THE  STATE  RIGHTS  HERESY 

At  the  January  term,  1870,  the  question  of  the  power  of 
a  state  court  to  release  by  habeas  corpus  a  person  held  in 
custody  by  a  federal  official  under  federal  laws  came  again 
before  the  Court,  and  at  the  June  term  preceding  the  cog- 
nate question  of  the  power  of  federal  courts  either  by  writ 
of  error  or  change  of  venue  to  obtain  jurisdiction  over  ac- 
tions properly  commenced  in  state  courts  was  also  pre- 
sented. 

These  were  the  questions  presented  in  the  Booth  case, 
where  the  Court  had  defied  the  United  States  Supreme 
Court,  and  refused  to  obey  its  mandate. 

The  Tarble  1  case  was  a  certiorari  action,  brought  to  re- 
view the  order  of  a  court  commissioner  upon  habeas  corpus 
discharging  Edward  Tarble  from  the  custody  of  a  recruit- 
ing officer  of  the  United  States  because  he  was  not  eighteen 
years  of  age  when  he  enlisted. 

The  case  was  on  all  fours  with  the  Higgins  case2  al- 
ready considered  in  this  work,  where  the  Court  had  affirmed 
the  order  of  a  court  commissioner  discharging  a  minor 
from  military  service  on  the  same  ground.  But  in  the 
Higgins  case  the  jurisdiction  of  the  state  court  to  entertain 
habeas  corpus  proceedings  and  discharge  an  enlisted  man 
from  the  military  service  of  the  United  States  had  not  been 
questioned,  and  hence  passed  without  mention. 

1  In  re  Tarble,  25  Wis.  390;   Knorr  v.  Ins.  Co.  25  Wis.  143. 

2  In  re  Higgins,  16  Wis.  *351. 


End  of  the  State  Rights  Heresy  261 

In  the  Tarble  case,  however,  the  United  States  District 
Attorney,  Hon.  G.  W.  Hazleton,  raised  the  question  of  ju- 
risdiction of  the  Court,  and  made  that  the  only  question  in 
the  case.  Of  course,  if  the  Booth  case  was  to  be  followed 
the  question  whether  the  State  Court  had  jurisdiction  was 
not  only  settled  in  the  affirmative,  but  conclusively  settled 
beyond  the  power  of  the  Federal  Courts  to  interfere;  but 
the  world  had  moved  on  a  long  distance  since  the  final  ap- 
pearance of  the  Booth  case.  Abstract  theories  which 
seemed  vital  to  the  preservation  of  individual  liberty  at  that 
time  had  been  proven  under  the  stress  of  civil  war  to  be 
so  far  incompatible  with  the  powers  which  the  federal  gov- 
ernment must  possess  in  order  to  preserve  its  own  exist- 
ence that  they  must  give  way  if  the  nation  was  to  remain. 
Judge  Paine  himself  had  been  in  the  army  and  had  actual 
experience  of  the  necessities  of  the  situation.  Did  he  and 
Judge  Cole  retain  their  former  views  or  nor?  This  was 
the  question  upon  which  the  case  would  turn. 

The  exact  question  presented  in  the  Knorr  case  was 
whether  Congress  had  power  under  the  constitution  to  pro- 
vide for  the  removal  of  a  cause  commenced  in  a  state  court 
against  a  citizen  of  another  state  to  a  federal  court,  i.  e., 
whether  the  12th  section  of  the  judiciary  act  of  1789  was 
valid. 

This  question  had  been  met  by  the  Court  in  1861  in  the 
case  of  Moseley  v.  Chamberlain*  and  it  was  there  held  by 
Justices  Cole  and  Paine  that  Congress  had  no  such  power, 
Chief  Justice  Dixon  dissenting. 

So  the  question  in  the  Knorr  case  was  also  a  closed  ques- 
tion, if  the  former  decisions  of  the  Court  were  to  be  fol- 
lowed. 


3  18  Wis.  *700. 


262  The  Story  of  a  Great  Court 

The  Knorr  case  was  presented  at  the  June  term,  1869, 
and  resulted  in  a  reversal  of  the  doctrine  of  the  Mosclcy 
case  by  the  votes  of  Judges  Dixon  and  Cole,  in  the  face, 
however,  of  a  dissenting  opinion  by  Judge  Paine. 

Judge  Cole  wrote  the  opinion  of  the  Court,  and  had  evi- 
dently come  to  the  conclusion  that  there  was  no  longer  any 
use  in  holding  to  the  extreme  doctrine  that  there  could  be 
no  removal  of  a  cause  from  state  to  federal  courts  where 
the  citizenship  of  the  parties  was  diverse.  He  abandoned 
the  doctrine  not  because  convinced  of  its  unsoundness,  but 
because  convinced  that  it  was  useless  to  seek  to  maintain 
the  doctrine  in  the  face  of  the  holdings  of  the  United  States 
Supreme  Court.  After  holding  that  the  defendant  insur- 
ance company  must  be  treated  as  a  citizen  of  New  York, 

he  says : 

"As  stated  by  the  chief  justice,  in  the  case  of  Moseley  v.  Cham- 
lerlain  (18  Wis.  700),  I  have  always  been  of  the  opinion  that 
congress  has  no  power  to  provide  for  the  removal  of  a  cause 
from  a  state  to  a  federal  court,  and,  consequently,  that  the 
twelfth  section  of  the  judiciary  act  is  invalid.  I  shall  not,  how- 
ever, attempt  to  give  any  reasons  for  that  opinion  at  this  time. 
Suffice  it  to  say,  as  that  opinion  was  maturely  formed,  after  all 
the  examination  and  reflection  I  could  bestow  upon  the  question, 
it  remains  unchanged.  But  my  adhering  to  that  opinion  now 
would  be  of  no  earthly  advantage,  that  I  can  see,  to  any  person 
or  any  principle.  On  the  contrary,  it  would  only  be  productive 
of  great  embarrassment,  trouble  and  expense  to  these  parties, 
and  others  similarly  situated.  For  we  well  know  that  the  su- 
preme court  of  the  United  States,  in  the  exercise  of  that  juris- 
diction which  it  assumes,  would  pronounce  all  the  proceedings 
in  the  state  court,  after  the  application  for  removal  was  made, 
as  coram  non  judice." 

Judge  Paine  filed  an  eloquent  dissenting  opinion  which 
almost  persuades  one  as  he  reads  it  of  its  correctness. 

This  was  really  a  receding  of  one  step  from  the  radical 
doctrine  of  the  Booth  case.  That  case  in  substance  held 
that  the  clause  of  the  federal  constitution  which  says  that 


End  of  the  State  Rights  Heresy  263 

the  federal  judicial  power  "shall  extend  to  all  cases  in  law 
and  equity  arising  under  this  constitution,  the  laws  of  the 
United  States  *  *  *  to  all  cases  *  *  *  between 
citizens  of  different  states"  *  did  not  cover  cases  rightfully 
commenced  in  a  state  court.  This  really  indefensible  posi- 
tion was  now  abandoned. 

It  is  interesting  to  note  in  this  connection  that  in  a  case 
decided  at  the  following  term  5  Judges  Cole  and  Paine  held 
(Chief  Justice  Dixon  dissenting)  that  where  a  foreign 
plaintiff  had  brought  his  action  in  a  state  court  against  a 
citizen  of  the  state  he  thereby  irrevocably  elected  to  pursue 
his  remedy  in  the  state  court,  and  could  not  remove  the  case 
to  the  federal  courts  and  that  the  act  of  congress  purport- 
ing to  give  him  that  right  was  invalid.  This  ruling  was  re- 
versed by  the  Supreme  Court  of  the  United  States  in  the 
same  case  in  February,  1872.6 

The  Tarble  case  followed  in  January,  and  here  the  simple 
question  was  whether  a  state  court  had  jurisdiction  to  dis- 
charge by  habeas  corpus  a  prisoner  held  by  a  federal  officer 
under  federal  laws.  In  this  case  Judges  Cole  and  Paine 
adhered  to  the  doctrines  of  the  Booth  case,  and  affirmed  the 
discharge  against  Chief  Justice  Dixon's  dissent.  In  this 
case  Judge  Paine  wrote  the  opinion  of  the  court,  and  made 
it  as  strong  probably  as  human  reasoning  could  make  it. 

It  is  interesting  to  read  the  opinions  of  Judge  Paine  in 
the  Knorr  and  Tarble  cases  side  by  side.  It  is  evident  that 
in  them  he  endeavored  to  set  forth  with  the  strongest  logic 
and  most  convincing  phrase  the  doctrine  of  the  jurisdiction 
of  the  state  courts  to  determine  the  validity  of  federal  im- 
prisonment, and  the  doctrine  that  the  United  States  Courts 


4  Const.  U.  S.  Art.  ITT,  Sec.  2. 

B  Whlton  v.  C.  &  N.  W.  Ry.  Co.  25  Wis.  424. 

«C.  &  N.  W.  Ry.  Co.  v.  Whlton,  13  Wallace,  270. 


264  The  Story  of  a  Great  Court 

could  not  be  given  power  to  interfere  with  or  reverse  a  rul- 
ing of  the  state  court  in  a  proceeding  properly  brought  in 
that  court.  It  seems  evident  that  he  was  writing  partially 
at  least  with  a  view  of  vindicating  himself  in  the  eyes  of 
posterity ;  they  may  be  said  to  constitute  his  "apologia  pro 
vita  sua." 

Extracts  from  these  opinions  will  serve  well  to  show  the 
quality  of  his  reasoning  and  the  beauty  of  his  style.  In  the 
Tarble  case,  on  the  question  of  the  jurisdiction  of  a  state 
court  to  enquire  into  and  decide  upon  the  validity  of  the 
judgment  or  order  of  a  federal  court,  he  says: 

"That.  Court"  (i.  e.  the  Supreme  Court  of  the  United  States) 
"suggests,  in  the  Booth  case,  that  this  court  could  no  more  in- 
quire into  the  legality  of  the  imprisonment  of  a  citizen  of  this 
state  within  its  borders,  under  the  order  of  a  federal  court,  than 
it  could  send  its  writ  into  Michigan  and  inquire  as  to  the  legality 
of  the  imprisonment  of  a  person  there.  It  may  be  conceded  that 
the  state  and  federal  judicial  systems  are  distinct  and  separate, 
and  independent  of  each  other,  as  those  of  different  states.  Such 
a  concession  is  clearly  contrary  to  the  existence  of  that  appellate 
jurisdiction  over  the  state  courts  which  the  federal  court  has 
asserted  and  exercised.  But  the  repugnance  between  the  doc- 
trine of  the  Booth  case  now  under  consideration  and  the  exist- 
ence of  that  appellate  jurisdiction  will  be  hereafter  noticed.  I 
allude  now  to  that  illustration  of  the  court  simply  to  say,  that,  If 
the  validity  of  a  judgment  of  a  court  of  Michigan  should  be 
drawn  in  question  in  any  court  of  this  state,  in  the  exercise  of 
its  ordinarj-  jurisdiction,  the  court  here  could  decide,  and  must 
necessarily  decide,  whether  the  court  of  Michigan  had  jurisdic- 
tion to  render  it.  The  fact  that  the  two  jurisdictions  are  utterly 
foreign  to  each  other  does  not  prevent  either  from  deciding  to 
that  extent  upon  the  validity  of  the  judgments  and  proceedings 
of  the  other.  Here,  too,  the  federal  authority  is  clear  and  em- 
phatic. In  the  case  of  Rose  v.  Himely,  4  Cranch,  241,  the  court 
sustained  the  right  of  an  American  court  to  decide  collaterally 
upon  the  jurisdiction  of  a  court  of  Santo  Domingo.  The  chief 
justice  said:  'The  great  question  to  be  decided  is,  was  this  sen- 
tence pronounced  by  a  court  of  competent  jurisdiction?  At  the 
threshold  of  this  interesting  inquiry,  a  difficulty  presents  itself, 
which  is  of  no  inconsiderable  magnitude.     It  is  this:   Can  this 


End  of  the  State  Rights  Heresy  265 

court  exawdne  the  jurisdiction  of  a  foreign  tribunal?'  The  latter 
question  he  answered  in  the  affirmative,  and  in  discussing  it  h9 
said:  'A  sentence  professing  on  its  face  to  be  the  sentence  of  a 
judicial  tribunal,  if  rendered  by  a  self-constituted  body,  or  by  a 
body  not  empowered  by  its  government  to  take  cognizance  of 
the  subject  it  had  decided,  could  have  no  legal  effect  whatever. 
The  power  of  the  court,  then,  is  of  necessity  examinable  to  a  cer- 
tain extent  by  that  tribunal  which  is  compelled  to  decide  whether 
its  sentence  has  changed  the  right  of  property.  The  power  un- 
der which  it  acts  must  be  looked  into;  and  its  authority  to  de- 
cide questions  which  it  professed  to  decide  must  be  considered.' 
And  again,  he  says:  'Upon  principle  it  would  seem  that  the 
operation  of  every  judgment  must  depend  upon  the  power  of 
the  court  to  render  that  judgment,  or  in  other  words,  on  its  ju- 
risdiction over  the  subject-matter  which  it  has  determined.' 

"Although  all  this  doctrine  is,  as  before  remarked,  entirely 
familiar,  I  have  felt  justified  in  thus  quoting  it  from  the  supreme 
court  of  the  United  States,  in  order  to  show  that  when  this  court, 
in  the  Booth  case,  assumed  the  power,  in  the  exercise  of  its  ordi- 
nary jurisdiction  to  issue  the  writ  of  habeas  corpus,  to  pass  col- 
laterally upon  the  jurisdiction  of  the  district  court  of  the  United 
States  to  pronounce  the  judgment  under  which  Booth  was  im- 
prisoned, it  was  not  assuming  any  such  unwarrantable  or  un- 
heard of  power  as  it  has  been  charged  with  doing;  and  that,  on 
the  contrary,  whatever  might  be  said  as  to  the  correctness  of 
ist  decisions,  still,  in  exercising  the  right  to  decide  the  question, 
it  was  proceeding  upon  a  principle  universally  recognized,  and 
exercising  a  right  that  is  and  must  of  necessity  be  exercised  by 
all  courts.  For  there  is  no  just  reasoning  upon  which  any  dis- 
tinction can  be  asserted  between  a  habeas  corpus  and  any  other 
judicial  proceeding  or  suit,  in  respect  to  the  right  of  the  court 
to  decide  upon  the  validity  of  the  judgment  of  any  other  court 
that  may  be  drawn  in  question. 

"it  is  true,  that,  as  states  have  no  extra-territorial  jurisdiction, 
and  each  can,  therefore,  by  the  writ  of  habeas  corpus,  inquire 
into  the  legality  of  imprisonment  only  within  its  own  limits, 
such  a  proceeding  would  be  less  likely  to  draw  in  question  the 
validity  of  any  foreign  judgment,  than  would  litigation  concern- 
ing rights  of  property.  But  this  can  make  no  possible  difference 
in  respect  to  the  right  of  the  court  to  decide  the  question,  if  it 
should  arise.  And  although  such  a  case  may  be  very  unlikely  to 
arise,  yet  if  any  one  should  assert  a  right  to  imprison  any  per- 
son within  this  state  under  the  judgment  or  order  of  a  court  of 


266  The  Story  of  a  Great  Court 

Michigan,  or  of  any  other  state  or  country,  it  would  scarcely  be 
claimed  that  the  entire  separation  of  the  two  sovereignties,  and 
the  absence  of  any  power  to  review  the  judgments  of  such  other 
court,  would  prevent  this  court  from  inquiring  upon  habeas  cor- 
pus into  the  legality  of  such  imprisonment. 

"But  under  our  peculiar  system,  where  the  state  and  federal 
governments,  with  their  distinct  judicial  systems,  exercise  a 
divided  sovereignty  and  jurisdiction  over  the  same  territory  and 
people,  such  a  question  may  well  arise,  as  it  did  in  the  Booth 
case.  And  for  this  court,  in  that  case,  in  the  exercise  of  its  ac- 
knowledged jurisdiction  of  the  writ  of  habeas  corpus,  where  the 
judgment  of  the  district  court  was  returned  as  the  justification 
for  Booth's  imprisonment,  to  pass  upon  the  question  whether 
that  court  had  jurisdiction  to  pronounce  such  judgment,  was  no 
more  a  usurpation  of  authority,  that  it  would  have  been  to  have 
passed  upon  a  judgment  of  a  court  of  Michigan  or  any  other 
state,  if  such  had  been  set  up  in  justification.  The  fact  that  the 
district  court  might  render  a  valid  judgment  that  would  justify 
imprisonment  in  this  state,  and  that  no  court  of  another  state 
could  do  so,  does  not  vary  the  question.  That  fact  gives  no 
validity  to  its  judgment  rendered  without  jurisdiction,  and  has 
no  legitimate  tendency  to  impeach  the  right  of  the  state  court 
to  pass  upon  this  question.  And  there  is  nothing  in  the  relations 
between  the  federal  and  state  governments,  nothing  in  the  con- 
ceded supremacy  of  the  constitution  and  laws  of  the  United  States, 
nothing  in  the  nature  or  character  of  the  federal  courts  them- 
selves, which  can  have  any  just  effect  to  make  their  judgments  an 
exception  to  that  universal  rule,  which,  as  already  seen,  they 
have  so  emphatically  asserted,  or  to  place  them  on  any  different 
footing,  in  this  respect,  from  that  on  which  the  judgments  of  all 
other  courts  must  stand." 

In  his  dissenting  opinion  in  the  Knorr  case  he  draws  the 
distinction  between  the  doctrine  of  secession  and  the  doc- 
trine of  state  rights  as  understood  by  him.  If  any  one 
could  draw  that  distinction  satisfactorily  he  could  do  it. 
After  stating  that  if  the  appellate  jurisdiction  of  the  United 
States  Supreme  Court  over  State  Courts  in  fact  exists  then 
there  is  in  reality  no  such  thing  as  state  rights,  because  the 
state  courts  become  then  simply  inferior  courts  of  a  system 


End  of  the  State  Rights  Heresy  267 

in  which  the  United  States  Court  is  the  superior  and  final 
arbiter,  he  says : 

"But  if  under  our  system  where  the  powers  of  sovereignty  are 
divided  between  the  federal  and  state  governments,  this  juris- 
diction does  not  exist,  then  no  common  arbiter  has  been  pro- 
vided to  decide  conclusively  for  both  such  questions  of  difference 
as  may  arise  concerning  the  delegated  and  reserved  powers.  It 
would  then  be  proper  to  speak  of  state  rights  as  such,  for  the 
states  would  then  hold  the  reserved  powers  by  a  tenure  as  valid 
as  that  by  which  the  federal  government  holds  the  delegated 
powers.  The  powers  of  neither  could  be  wrested  from  it  by  the 
judgment  of  the  other.  And  this  is  all  that  the  idea  of  state 
rights  properly  understood  ever  involved.  It  asserts  no  claim 
that  the  judgment  of  the  state  tribunals  is  at  all  binding  upon 
the  federal  government  upon  questions  involving  their  respec- 
tive powers.  It  claims  only  that  judgments  of  the  Federal 
Court  are  alike  inefficacious  to  bind  the  state.  I  am  aware  that 
the  idea  of  state  rights  is  at  present  exceedingly  odious  and 
unpopular.  It  is  branded  as  a  legal  and  political  heresy  and  held 
directly  responsible  for  the  attempt  at  secession  with  all  its  dis- 
astrous consequences;  but  the  two  claims  are  entirely  distinct 
and  dissimilar.  Secession  is  revolutionary;  state  rights  not. 
Secession  seeks  to  withdraw  and  overthrow  the  powers  admitted 
to  have  been  delegated  to  the  Federal  government.  State  rights 
makes  no  such  effort.  Secession  throws  off  entirely  all  obliga- 
tion under  the  Constitution  of  the  United  States.  State  rights 
throws  off  none  of  that  obligation,  but  concedes  that  that  Con- 
stitution and  the  laws  made  in  pursuance  of  it  are  the  supreme 
lav/  of  the  land,  and  that  it  is  the  sworn  duty  of  its  tribunals  to 
regard  and  enforce  them  as  such." 

Judge  Paine  was  right  as  far  as  he  went ;  secession  was 
revolution  and  state  rights  was  not  necessarily  revolution ; 
but  he  did  not  seem  to  appreciate  that  state  rights  as  he 
advocated  it,  though  not  revolution,  was  necessarily  legal 
and  governmental  chaos.  Judge  Paine  lived  less  than  a 
year  after  the  decision  of  the  Tarble  case.  Doubtless  he 
appreciated  before  his  death  that  it  was  another  "lost 
cause,"  but  whether  he  appreciated  it  or  not  such  was  the 
fact,  and  had  it  not  been  so  the  national  government  could 


268  The  Story  of  a  Great  Court 

not  have  existed  save  as  an  impotent  and  nerveless  shadow 
of  a  government  unable  to  execute  its  own  decrees  save  by 
the  courtesy  of  the  states,  and  worthy  only  of  contempt. 

The  Tarble  case  was  taken  to  the  Supreme  Court  of  the 
United  States  and  reversed,  Chief  Justice  Chase  dissenting. 
It  was  held  in  the  opinion  that  a  State  Court  has  no  author- 
ity to  discharge  on  habeas  corpus  a  prisoner  held  by  a 
United  States  officer  under  the  authority  or  claim  of  author- 
ity of  the  United  States  government,  and  that  whenever 
that  fact  appears  the  State  Court  can  proceed  no  further. 
This  case  may  be  said  to  have  settled  the  law  upon  the  sub- 
ject ;  it  has  been  acquiesced  in  by  all  State  Courts  since 
that  time,  and  is  now  the  unquestioned  law.7 

This  decision  was  made  in  March,  1872.  Judge  Paine 
died  in  January,  1871  ;  consequently  he  never  knew  how 
completely  the  doctrine  to  which  he  had  dedicated  a  large 
part  of  his  life  and  his  talents  was  finally  swept  away  for- 
ever. 


1  U.  S.  v.  Tarble,  13  Wallace,  397. 


Death  of  Paine  269 

CHAPTER  XXII 

DEATH   OF  JUDGE  PAINE  AND  APPOINTMENT  OF  JUDGE  LYON 

The  old  triumvirate  upon  which  the  bench  composed  of 
Dixon,  Cole  and  Paine  was  now  permanently  restored,  and 
there  seemed  no  reason  why  it  should  not  continue  for 
years.  On  the  13th  day  of  January,  1871,  however,  Judge 
Paine  died  as  the  result  of  a  short  but  severe  attack  of 
erysipelas.  Barely  forty-three  years  of  age  and  apparently 
in  the  best  of  health,  his  sudden  death  was  a  most  profound 
shock  to  the  people  of  the  state,  the  great  majority  of  whom 
did  not  even  know  that  he  was  sick. 

Byron  Paine  was  very  dear  to  the  hearts  of  the  people. 
Since  that  day  in  May,  1854,  when  at  the  age  of  twenty-six 
he  had  appeared  in  the  Supreme  Court  as  the  champion 
of  human  freedom  and  successfully  challenged  the  consti- 
tutionality of  the  fugitive  slave  law  in  the  Booth  case,  the 
people  had  loved  him  and  delighted  to  honor  him ;  and  right 
well  had  he  deserved  the  love  and  honor,  for  his  abilities 
were  as  great  as  his  character  was  pure. 

There  was  an  universal  outburst  of  grief  throughout  the 
state.  The  legislature  being  in  session,  Governor  Fairchild 
at  once  sent  a  special  message  notifying  the  houses  of  the 
sad  event;  following  an  eloquent  and  touching  tribute  by 
Harlow  S.  Orton,  then  a  member  of  the  assembly,  resolu- 
tions of  condolence  were  adopted  by  both  houses,  and  on  the 
25th  of  the  same  month  the  death  was  formerly  announced 
to  the  Supreme  Court ;  at  which  time  addresses  were  made 
by  John  W.  Cary,  E.  G.  Ryan,  and  Winficld  Smith  of 
Milwaukee,  J.  S.  Curtis  of  Green  Bay,  Charles  E.  Dyer  of 


270  The  Story  of  a  Great  Court 

Racine,  S.  U.  Pinney  of  Madison,  and  Daniel  Hall  of  Water- 
town,  in  addition  to  which  resolutions  of  love  and  respect 
adopted  by  the  bar  of  the  Supreme  Court  and  by  the  bar 
associations  of  Milwaukee,  Green  Bay,  Racine  and  Madison 
were  presented.  To  these  tributes  Chief  Justice  Dixon  re- 
sponded most  feelingly.1 

But  the  business  of  the  Court  must  go  on  notwithstanding 
the  call  of  death ;  the  great  increase  of  manufacturing  and 
transportation  enterprises  which  had  followed  the  close  of 
the  civil  war  had  brought  with  it  new  and  numerous  ques- 
tions, and  the  business  of  the  Court  was  rapidly  increasing 
year  by  year.  There  were  but  three  men  to  bear  the  load 
even  when  the  bench  was  complete,  and  hence  there  could 
be  no  unnecessary  delay  in  filling  the  vacancy. 

In  this  emergency  I  am  certain  that  Governor  Fairchild 
did  not  feel  the  necessity  of  spending  any  considerable  time 
in  deliberation.  I  think  he  had  no  doubt  as  to  whom  he 
should  appoint  from  the  very  first  moment.  William  Penn 
Lyon  of  Racine  at  that  time  had  been  judge  of  the  first  cir- 
cuit court  for  a  little  more  than  five  years,  and  had  signally 
demonstrated  his  fitness  for  the  judicial  office;  he  had  made 
a  nisi  prius  judge  remarkable  for  his  judicial  equipoise, 
clearness  of  mind  and  firm  but  just  and  reasonable  enforce- 
ment of  the  law. 

Governor  Fairchild  knew  Judge  Lyon's  record  and  quali- 
fications well,  and  felt  no  necessity  for  extended  formal 
endorsements.  On  the  20th  day  of  January  Judge  Lyon 
was  appointed  to  fill  the  vacancy  and  on  the  26th  of  the 
same  month  he  took  his  seat.  Governor  Fairchild  himself 
told  the  writer  more  than  twenty  years  later  that  he  re- 
garded the  appointment  of  Judge  Lyon  to  the   Supreme 


1  27  Wis.  23-58. 


Death  of  Paine  271 

bench  with  greater  satisfaction  than  any  other  single  act 
of  his  long  administration. 

Judge  Lyon  was  a  man  of  strong  natural  legal  mind  and 
excellent  legal  education  and  experience,  of  strong  physique 
and  handsome  person;  he  had  seen  life  from  many  angles 
and  he  brought  all  his  talents,  his  experience,  and  his  vir- 
tues to  a  place  where  they  could  be  and  were  utilized  to  the 
utmost  for  nearly  a  quarter  of  a  century.  Judge  Lyon's  life 
had  been  varied  and  interesting,  more  so  in  fact  than  that 
of  any  of  his  colleagues. 

He  was  born  of  Quaker  parentage  at  Chatham,  Columbia 
County,  New  York,  October  28,  1822.  His  early  educa- 
tional opportunities  were  confined  to  district  and  select 
schools,  and  these  only  at  intervals,  but  at  fifteen  he  had  ac- 
quired what  was  for  the  period  a  fair  English  education, 
including  some  knowledge  of  algebra,  geometry  and  na- 
tural philosophy,  beside  some  acquaintance  with  Latin.  He 
taught  a  district  school  for  a  time  at  the  age  of  fifteen,  but 
teaching  was  not  to  his  taste,  and  he  soon  went  to  Albany 
where  he  obtained  employment  as  clerk  in  a  grocery  store, 
spending  his  leisure  hours  assiduously  in  attending  the 
courts  and  legislative  sessions,  in  which  direction  the  at- 
traction was  strong. 

In  1841  his  father  and  the  family,  including  the  future 
judge,  removed  to  Wisconsin  and  settled  in  what  is  now 
the  town  of  Lyons  in  Walworth  County,  which,  I  believe, 
was  named  after  the  family.  For  three  years  he  did  farm 
labor,  excepting  during  his  two  terms  of  school  teaching ; 
but  he  read  Blackstone  and  Kent  meanwhile,  and  in  1844 
entered  the  law  office  of  Judge  George  Gale  at  Elkhorn  as 
a  law  student.  After  a  few  months  with  Mr.  Gale  he  went 
home  to  work  through  the  harvest,  and  soon  after  was  at- 
tacked with  an  acute  inflammation  of  the  eyes,  which  pre- 


272  The  Story  of  a  Great  Court 

vented  all  use  of  the  eyes  for  a  year.  In  1845  he  entered 
Judge  Charles  M.  Baker's  law  office  at  Geneva,  and  re- 
mained there  until  the  spring  of  1846,  when  he  was  admitted 
to  the  bar.  At  once  he  commenced  to  practice  law  at  Lyons 
(then  Hudson),  being  elected  a  justice  of  the  peace  the 
same  spring.  He  remained  here  five  years  and  removed  in 
1850  to  the  village  of  Burlington,  Racine  County,  where  he 
formed  a  partnership  with  Caleb  P.  Barns,  the  leading  prac- 
titioner of  the  place.  Here  his  talents  began  to  receive  due 
recognition,  business  came  to  him  in  increasing  volume,  and 
in  1854  he  was  elected  District  Attorney  of  Racine  County, 
and  removed  to  Racine,  the  county  seat,  in  the  spring  of 
1855.  He  was  now  well  before  the  public  eye,  and  was 
soon  at  the  head  of  the  firm  of  Lyon  and  Adams,  which  be- 
came one  of  the  leading  firms  at  the  Racine  bar  at  a  time 
when  the  Racine  bar  was  one  of  the  strongest  in  the  state. 

Two  terms  were  spent  in  the  office  of  District  Attorney, 
and  in  the  fall  of  1858  he  was  chosen  by  the  Republicans  as 
their  candidate  for  the  assembly  and  elected.  It  was  his 
first  legislative  experience,  and  he  was  but  thirty-six  years 
of  age,  but  such  was  the  estimation  in  which  he  was  held 
that  he  was  chosen  speaker  of  the  assembly  in  the  session 
of  1859  and  performed  the  duties  most  acceptably.  He  was 
re-elected  to  the  assembly  in  the  fall  of  1859  and  was  again 
chosen  speaker  at  the  session  of  i860. 

When  the  call  to  arms  came  in  1861  Mr.  Lyon  could  not 
resist  the  call  of  duty,  and  he  raised  a  company  which  be- 
came Company  K  of  the  Eighth  Regiment  of  which  he  be- 
came captain,  his  commission  being  dated  August  7,  1861. 
This  was  the  famous  "Eagle"  Regiment  which  had  with  it 
for  a  mascot  the  live  eagle,  "Old  Abe." 

The  regiment  left  Madison  October  12,  1861,  and  by  the 
2 1  st  was  in  conflict  with  the  Confederates  under  Jefferson 


WILLIAM  PENN  LYON. 


Death  of  Paine  273 

Thompson  at  Greenville,  Mo.,  and  assisted  in  the  victory  at 
that  time  gained.  In  this  battle  Captain  Lyon  took  an  ac- 
tive part. 

Captain  Lyon  remained  in  active  service  during  the  entire 
war.  Interesting  as  it  would  be  to  follow  his  steps,  it  is 
hardly  within  the  scope  of  the  present  work.  That  he  was 
a  good  soldier,  and  a  commander  beloved  by  his  troops 
goes  almost  without  saying.  In  August,  1862,  he  became 
colonel  of  the  13th  Wisconsin  Regiment,  and  with  his  regi- 
ment performed  duty  in  the  states  of  Kentucky,  Tennessee, 
Alabama,  and  Texas,  until  the  resignation  of  his  commission 
September  11,  1865.  Subsequently  he  was  brevetted  a 
brigadier  general  of  U.  S.  Volunteers,  dating  from  October 
26,  1865. 

Judicial  honors  come  to  him  unasked  and  unexpectedly 
in  April,  1865,  while  he  was  still  on  duty  in  the  field.  This 
was  the  manner  of  it. 

David  Noggle,  a  man  of  strong  natural  abilities  but  lim- 
ited education,  had  been  Circuit  Judge  of  the  first  circuit 
(then  composed  of  Racine,  Kenosha,  Walworth,  Rock  and 
Green  Counties)  since  his  appointment  by  Governor  Ran- 
dall in  July,  1858.  He  had  made  some  very  determined 
and  bitter  enemies  both  among  the  bar  and  the  people. 
There  were  charges  of  dishonesty  and  unworthy  methods 
openly  made  against  him  when  the  spring  of  1865  ap- 
proached, at  which  time  the  election  of  a  successor  was 
due.  No  attempt  will  be  made  here  to  determine  the  ques- 
tion of  the  truth  or  falsity  of  these  charges.  Judge  Noggle 
was  a  forceful  and  ambitious  man ;  he  was  fully  determined 
to  succeed  himself;  he  caused  his  nomination  papers  to  be 
circulated  among  the  bar  in  the  winter  of  1865  as  he  held 
court  in  the  various  counties  of  his  circuit.  The  bar  gen- 
erally do  not  wish  to  actively  antagonize  a  judge  before 
18 


274  The  Story  of  a  Great  Court 

whom  their  cases  are  about  to  be  tried;  whether  from  this 
cause  or  not  Judge  Noggle's  "petitions"  were  generally 
signed  bv  the  bar  of  his  circuit.  Only  a  very  few  refused 
to  sign.  The  late  Chief  Justice  Cassoday  told  the  writer 
that  he  himself  refused  to  sign. 

It  seemed  for  a  time  that  there  was  to  be  no  opposition 
to  Judge  Noggle ;  his  machine  seemed  to  be  perfect  and  he 
had  the  prestige  of  being  "in." 

But  there  were  men  who  had  deep  sense  of  personal 
wrong  (whether  justifiably  or  not  is  not  material  here) 
against  Judge  Noggle,  and  they  were  willing  to  go  through 

the 

"Patient  search  and  vigil  long 
Of  him  who  treasures  up  a  wrong." 

if  thereby  they  might  defeat  him. 

Among  these  was  William  H.  Tripp  of  Rock  County,  who 
had  been  a  member  of  the  assembly  in  1857.  To  him  more 
than  to  any  one  else  is  due  the  credit  of  launching  Judge 
Lyon  upon  a  judicial  career.  He  first  suggested  the  name 
of  Lyon  as  a  candidate  and  he  was  mainly  responsible  for 
the  calling  by  a  self-constituted  committee  of  an  independ- 
ent judicial  convention,  which  met  at  Elkhorn,  Walworth 
County,  March  17,  1865. 

In  numbers  the  convention  was  ludicrously  small ;  there 
were  eleven  gentlemen  present  from  Rock  County  (John  R. 
Bennett  and  John  Winans  of  the  Janesville  bar  being  among 
them),  seven  from  Walworth  County,  one  from  Racine 
(Colonel  Lyon's  home  county),  one  from  Green  County, 
and  none  at  all  from  Kenosha. 

Lack  of  numbers,  however,  did  hot  dismay  the  gentlemen 
who  made  up  the  convention.  What  they  lacked  in  num- 
bers they  made  up  in  determination.  They  promptly  nom- 
inated Colonel  Lyon,  appointed  a  committee  of  notification, 


Death  of  Paine  275 

and  a  committee  to  prepare  and  distribute  a  campaign  ad- 
dress, and  adjourned. 

The  entire  thing  had  been  done  without  Colonel  Lyon's 
knowledge  or  consent.  On  the  19th  of  March,  1865.  the 
news  reached  him  at  or  near  Huntsville,  Alabama,  and  he 
wrote  home  concerning  it  as  follows  :2 

"March  19,  1865. — I  was  awakened  about  ten  o'clock  last  night 
by  one  of  the  boys,  who  told  me  I  had  a  telegram  from  home  but 
there  was  no  bad  news  in  it.  It  was  from  Janesville,  announc- 
ing my  nomination  as  Circuit  Judge.  I  am  entirely  in  the  dark 
about  the  position  of  affairs  there,  but  if  matters  are  as  I  suppose 
I  see  no  earthly  chance  for  my  election.  I  concluded,  however, 
that  a  defeat  would  not  hurt  me  much  and  so  accepted  the  nom- 
ination. It  is  tantalizing  to  be  a  candidate  for  so  important  a 
place  and  know  nothing  of  your  position  or  prospects.  The  time 
is  so  short  between  the  nomination  and  the  date  of  election  that 
I  shall  probably  lose  most  of  the  army  vote.  I  shall  not  be  un- 
happy about  it  if  I  am  defeated,  and  you  must  not  be." 

The  audacity  of  the  move  at  first  provoked  mirth  and 
ridicule  on  the  part  of  Judge  Noggle's  adherents.  Prac- 
tically all  the  newspapers  of  the  circuit,  even  including 
those  in  Colonel  Lyon's  home  county  were  committed  to 
the  support  of  Judge  Noggle ;  the  bar  had  generally  signed 
his  call ;  supervisors,  jurors  and  other  prominent  men  had 
almost  universally  signed  it,  and  it  seemed  little  less  than 
madness  to  undertake  such  a  campaign. 

But  there  was  no  dismay  in  the  camp  of  the  insurgents. 
Colonel  Lyon  accepted  the  nomination  in  a  modest  and 
graceful  letter ;  the  committee  prepared  and  gave  forth  an 
address  to  the  people  libellous  in  every  line  if  not  true, 
wtiich  was  went  all  over  the  circuit,3  and  published  in  the 
local  papers.     In  this  circular  it  was  charged  that  Judge 


2  Reminiscenses  of  the  Civil  War  by  Mrs.  Adelia  C.  Lyon,  pp. 
208-9. 

a  Janesville  Gazette,  March  26,  1865. 


276  The  Story  of  a  Great  Court 

Noggle  at  once  took  sides  in  a  case  on  trial  and  became  un- 
fair;  that  the  appeals  taken  from  his  judgments  were  nu- 
merous, and  that  in  three-fourths  of  the  appeals  the  judg- 
ments were  reversed ;  that  he  refused  to  obey  the  Supreme 
Court ;  that  he  favored  those  who  were  fighting  their  taxes, 
and  granted  injunctions  without  reason  in  such  cases,  thus 
hindering  and  delaying  the  public  business;  that  he  was 
deficient  in  scholarship  to  such  an  extent  that  his  published 
opinions  were  a  mortification  to  the  people  of  the  circuit 
on  account  of  their  many  ludicrous  literary  blunders.     The 
following  extract  will  show  the  direct  language  used  in  the 
address:     "It  is  notorious  that  the  present  incumbent  of 
the  judicial  bench  of  this  circuit     *     *     *     has  employed 
himself  personally  for  many  months  in  procuring  calls  for 
his  own  nomination.     These  have  been  circulated  in  his  own 
court  while  he  was  on  the  bench  and  thrust  by  his  agents 
offensively  before  members  of  the  bar  while  their  cases  were 
on  trial,  and  at  the  end  of  the  term  to  jurors.     If  this  be 
true,  and  we  appeal  to  a  cloud  of  witnesses  who  have  seen 
it,  then  he  must  be  pronounced  unworthy  of  re-election.     It 
is  time  that  the  people  of  this  circuit  had  placed  upon  the 
bench  a  man  above  such  acts  and  nearer  to  the  high  moral 
and  intellectual  standard  of  the  first  judge  whom  they  chose 
to  that  position,  the  lamented  Whiton." 

In  addition  to  this  address  a  broad  side  containing  dis- 
tinct charges  of  dishonesty  in  several  business  transactions, 
and  signed  by  reputable  citizens  of  Janesville,  was  widely 
circulated  ;  this  broadside  will  be  found  preserved  among 
the  archives  of  the  State  Historical  Society  at  Madison.  It 
formed  the  basis  of  a  libel  suit  after  the  election  which,  as 
the  writer  has  been  informed,  the  defendants  finally  settled 
by  the  payment  of  damages. 


Death  of  Paine  277 

It  will  thus  be  seen  that  the  campaign  was  bitter,  but 
still  the  advantage  seemed  to  be  with  Judge  Noggle,  who 
had  his  earnest  friends  as  well  as  his  earnest  enemies. 
When  the  votes  were  counted,  however,  it  was  found  that 
Colonel  Lyon  had  received  a  decisive  majority  even  with- 
out the  soldier  vote. 

The  newly  elected  judge  returned  to  Wisconsin  after  the 
acceptance  of  his  resignation  from  the  army  about  the  first 
of  October,  1865.  Judge  Noggle  having  resigned  before 
the  expiration  of  his  term  of  office,  Judge  Lyon  was  ap- 
pointed to  fill  the  vacancy,  and  he  commenced  his  judicial 
duties  December  1,  1865. 

From  this  time  until  his  appointment  to  the  Supreme 
bench  his  duties  upon  the  circuit  bench  kept  him  fully  occu- 
pied. The  circuit  was  then  large  and  he  had  little  time  be- 
tween terms.  It  is  only  justice  to  say  that  he  made  almost 
an  ideal  trial  judge.  Calm,  fair,  gentle  in  manner  but  firm 
and  strong  of  determination  when  occasion  required,  his 
court  ran  easily  and  without  apparent  effort,  but  always 
with  the  consciousness  that  there  was  a  master  hand  at 
the  helm.  Every  lawyer  and  every  client  had  and  felt  that 
he  had  fair  treatment,  that  he  had  been  allowed  to  present 
his  case,  and  that  it  had  received  the  best  attention  which 
judge  and  jury  were  able  to  give  it.  He  became  endeared 
to  the  hearts  of  the  people  of  the  circuit  as  few  men  have 
been  either  before  or  since,  and  there  was  universal  regret 
to  part  with  him  when  he  was  translated  to  the  Supreme 
bench. 

I  do  not  think  Judge  Lyon  ever  claimed  the  gift  of  elo- 
quence cither  as  a  writer  or  an  orator,  yet  such  claims  have 
been  made  by  many  upon  far  less  basis  of  fact  than  could 
be  presented  in  favor  of  Judge  Lyon's  claim. 


278  The  Story  of  a  Great  Court 

Several  public  addresses  made  by  him  are  preserved  in 
a  volume  recently  published  by  Mrs.  Lyon  (his  wife,  who 
is  recently  deceased)  for  private  distribution,  entitled  "Rem- 
iniscences of  the  Civil  War,"  and  they  will  be  found  to  jus- 
tify the  assertion  that  upon  appropriate  occasion  at  least 
Judge  Lyon  was  capable  of  lofty  thought  clothed  in  lan- 
guage entirely  fitting  to  the  thought. 

On  July  4,  1866,  the  tattered  battleflags  of  the  various 
Wisconsin  regiments  were  presented  to  the  state  for  pres- 
ervation at  the  capitol,  and  Judge  Lyon  was  chosen  as  the 
representative  of  the  soldiers  to  present  them  in  appropriate 
words  to  Governor  Fairchild,  acting  for  the  state.  He  dis- 
charged this  task  with  conspicuous  ability,  and  from  this 
address  I  extract  the  following,  which  will  serve  to  illus- 
trate its  thought  and  diction : 

"This  is  a  sublime  spectacle;  and  I  repeat  with  emotion  of 
profound  gratitude  that  the  most  efficient,  the  most  powerful 
agency  in  producing  a  result  of  such  priceless  value,  was  that 
spirit  of  deep,  heartfelt  sympathy  for  our  soldiers,  and  that  ac- 
tive interest  in  their  welfare,  so  universally  manifested  by  our 
people  at  home  during  the  whole  period  of  the  war. 

"And  now,  sir,  having  acknowledged  our  obligations  to  our 
people,  I  return  for  a  few  moments  to  the  theme  which  the  occa- 
sion presses  more  directly  upon  our  attention.  These  banners 
are  the  glorious  symbols  of  our  national  unity,  the  material  rep- 
resentations of  the  institutions  of  freedom  and  of  the  patriotism 
of  the  people.  Like  the  cross  to  the  believer — to  the  soldier  the 
flag  under  which  he  fights  is  the  cherished  emblem  of  his  faith 
and  his  hope  and  the  object  of  his  devoted  love.  To  his  mind, 
the  honor  of  the  flag  is  synonymous  with  individual  honor  and 
with  the  honor  and  glory  of  the  State  and  the  Nation,  and  in- 
cludes them  all.  Every  patriotic  heart  cherishes  the  same  senti- 
ment. 

"Hence  do  these  banners  become  to  us  the  symbols  and  em- 
blems and  mementoes  of  all  the  labors  and  sacrifices  and  prayers 
of  all  the  people  for  the  success  of  our  arms.  In  this  view  they 
have  a  history;  a  history  eventful,  thrilling  and  glorious  in  some 
of  it?  details,  and  yet  inexpressibly  mournful  and  touching  and 
sad  in  others.     A  history  which  may  never  be  traced  on  parch- 


Death  of  Paine  279 

ment  or  fully  uttered  by  human  lips,  yet  which  is  written  in 
indelible  characters  upon  the  hearts  and  memories  of  thousands 
throughout  the  land. 

"The  mother  who  sent  forth  her  son  with  prayers  and  blessings 
and  bitter  tears  from  her  peaceful  home,  to  fight  and  die  for  his 
country,  and  who  sits  today  by  her  desolate  hearth-stone  and 
weeps  because  he  returns  no  more,  and  yet  who  thanks  God  that 
she  had  an  offering  to  lay  upon  the  altar  of  her  bleeding  coun- 
try; the  wife  whose  husband  sleeps  his  last,  dreamless  sleep  upon 
some  distant  Southern  battlefield,  and  from  whose  life  the  light 
and  joy  and  beauty  have  gone  out  forever;  these,  and  every  sor- 
rowing, desolate  heart  made  such  by  the  war,  are  amongst  the 
custodians  of  this  wonderful  history.  So,  also,  is  every  soldier 
who  has  marched  and  fought  beneath  these  banners;  so,  also,  is 
each  patriot  who  has  labored  in  civil  life  for  the  success  of  our 
arms,  or  who  has  breathed  fervent  prayers  to  heaven  for  the 
triumph  of  the  right. 

"But  I  must  hasten  to  a  conclusion.  When  these  banners 
were  entrusted  to  our  care  we  promised  with  hands  uplifted  to 
heaven  that  we  would  defend  the  honor  of  the  State  and  the 
Nation,  of  which  these  were  the  symbols,  under  all  circum- 
stances and  to  the  last  extremity;  and  in  behalf  of  those  to 
whom  they  were  thus  entrusted  I  solemnly  declare  that  this 
promise  has  been  faithfully  performed. 

"So  we  return  these  banners  to  the  State,  from  whence  we  re- 
ceived them.  They  are  bruised  and  torn  and  tattered;  but, 
thanks  be  to  God,  there  is  no  stain  of  dishonor  upon  one  of  them! 

"Receive  them  sir,  from  our  hands,  and  deposit  them  with  the 
archives  of  the  State.  Let  us  always  fulfill  our  sacred  obliga- 
tions to  those  who  are  maimed  or  who  fell  in  their  defense,  and 
to  their  helpless  families;  and  as  we  gaze  with  affectionate  ven- 
eration upon  these  sacred  symbols  of  our  national  faith,  let  us 
never  forget  the  lessons  of  patriotism  and  of  fidelity  to  duty 
which  their  history  inculcates." 

It  was  by  no  means  an  easy  task  to  follow  Judge  Paine 
upon  the  bench.  The  remorseless  accuracy  of  his  thought, 
the  clearness  of  his  reasoning,  and  the  simple  eloquence  of 
his  verbal  expression  combined  to  make  his  opinions  legal 
classics.  Judge  Charles  E.  Dyer  of  Racine  truly  said  of 
him  on  the  presentation  of  the  bar  memorials  before  men- 
tioned, "He  stood  not  always  upon  precedent,  but  at  times 


280  The  Story  of  a  Great  Court 

struck  out  new  paths  in  the  far  reaching  field  of  the  law, 
seldom  failing,  however,  to  plant  his  judgments  upon  the 
basis  of  sound  logic.  His  analytical  mind  always  first 
sought  safe  premises  from  which  it  progressed  to  unanswer- 
able conclusions." 

Perhaps  all  this  may  not  be  unreservedly  said  of  Judge 
Lyon,  still,  in  the  writer's  judgment,  there  is  no  great  room 
for  choice  between  the  two  in  respect  to  the  quality  of  their 
minds,  indeed  in  their  essential  traits  they  seem  surprisingly 
alike.  Both  had  a  strong  sense  of  justice,  both  had  the  rare 
faculty  of  stripping  the  non-essentials  from  a  case  and  go- 
ing at  once  to  the  vital  question,  both  were  content  to  part 
with  precedent  if  precedent  spelt  injustice,  and  both  pos- 
sessed terse  simplicity  of  style  and  clarity  of  thought  which 
make  their  opinions  a  delight  to  the  lawyer. 

General  Edwin  E.  Bryant  of  Madison  very  truly  said  of 
him,  "It  is  but  stating  a  truth  to  say  that  no  man  ever  stood 
higher  than  Judge  Lyon  for  all  the  qualities  and  equipoise 
of  qualities  that  constitute  the  just  judge;  confidence  in  his 
integrity  is  universal ;  his  mind  is  happily  constituted  to  see 
the  right  of  a  case.  Calm,  patient,  unbiased,  he  brought  to 
investigation  that  sincere  desire  to  be  right  that  opens  the 
mind  to  perceive  justice.  His  professional  labors  covered 
a  period  of  forty-eight  years.  He  was  judge  twenty-eight 
years,  of  which  twenty-three  years  were  on  the  bench  of 
the  Supreme  Court.  His  style  is  remarkable  for  its  simple 
directness,  lucidity  and  freedom  from  ornament." 

Judge  Lyon  was  a  trifle  more  than  forty-eight  years  of 
age  when  he  took  his  seat  upon  the  Supreme  bench,  and 
was  in  vigorous  health  physically  and  mentally.  His  life 
had  been  singularly  varied  and  active.  He  had  been  law- 
yer, a  legislator,  a  soldier  and  a  trial  judge,  and  in  each 
capacity  he  had  met  the  responsibilities  thrown  upon  him 


Death  of  Paine  281 

with  the  calm  grasp  which  comes  from  conscious  but  in  no 
sense  egotistical  strength.  He  came  to  this  crowning  work 
of  his  life  possessed  of  a  wealth  of  experience  both  with 
men  and  things  which  rarely  falls  to  the  lot  of  a  man  less 
than  fifty  years  of  age.  His  service  began  at  a  time  which 
may  properly  be  called  the  beginning  of  a  new  period.  The 
Court  had  been  in  existence  some  eighteen  years ;  during 
that  time  the  state  had  grown  from  a  frontier  community 
composed  of  straggling  rural  settlements  far  distant  from 
each  other  to  a  great  state  of  more  than  a  million  souls, 
with  prosperous  cities,  great  railroads  and  manifold  indus- 
tries. The  time  during  which  the  jurisprudence  of  the  state 
was  being  fundamentally  molded  and  the  general  policies 
determined  had  largely  passed,  but  a  period  fully  as  impor- 
tant was  beginning,  namely  the  period  when  with  the  great 
growth  of  wealth  and  population  and  the  development  of 
great  industrial  and  transportation  corporations,  new  legal 
and  economic  questions  were  pressing  to  the  front  and  de- 
manding wise  solution.  The  volume  of  the  business  of  the 
Court  had  largely  increased  with  the  close  of  the  civil  war, 
and  was  still  increasing.  While  formerly  the  decisions  of 
a  vear  filled  only  a  single  volume  of  reports,  more  than  two 
volumes  were  now  required,  and  the  end  was  not  yet.  So 
Judge  Lyon's  new  position  was  not  one  of  elegant  leisure, 
but  rather  a  position  in  which  he  was  to  spend  twenty-three 
years  in  hard,  unremitting  and  tedious  labor ;  but  he  entered 
on  it  cheerfully,  with  the  determination  to  do  his  entire 
duty.  He  had  the  confidence  and  respect  of  his  veteran  col- 
leagues, Dixon  and  Cole,  and  together  these  three  men 
carried  the  great  and  increasing  burden  of  the  litigation  of 
the  state  until  the  resignation  of  Chief  Justice  Dixon  in 
June,  1874. 


282  The  Story  of  a  Great  Court 

An  innovation  which  he  at  once  made  in  the  manner  of 
the  preparation  of  opinions,  while  not  vastly  important  in 
itself,  may  well  be  noticed,  because  it  is  essentially  charac- 
teristic of  the  man.  The  judges  had  been  accustomed  in 
their  opinions  to  take  up  and  treat  the  questions  presented 
without  making  any  preliminary  statement  of  the  facts  of 
the  case,  or  of  the  result  in  the  trial  court,  leaving  those 
matters  to  be  supplied  by  the  official  reporter.  This  method, 
while  generally  satisfactory,  left  much  to  be  desired  at 
times,  for  in  a  complicated  case  with  a  large  record,  it  could 
not  always  be  certain  that  the  reporter  would  accurately 
distinguish  between  the  facts  which  were  material,  and 
those  which  were  immaterial  to  the  Court's  treatment  of 
the  case.  Of  course,  the  judge  writing  the  opinion  should, 
of  all  persons,  be  able  to  extract  and  present  the  vital  and 
necessary  facts,  and  so  Judge  Lyon  from  the  first  prefaced 
every  opinion  with  a  brief  statement  of  the  salient  and  neces- 
sary facts,  and  the  result  in  the  trial  court.  These  state- 
ments were  at  first  made  a  part  of  the  opinion,  but  soon 
were  printed  separately,  with  a  statement  that  they  were 
prepared  by  Justice  Lyon,  and  in  Volumes  twenty-nine  and 
thirty  of  the  reports  the  reporter  printed  a  notice,  stating 
that  in  all  cases  where  the  opinion  was  written  by  Justice 
Lyon,  the  statement  of  facts  was  also  from  his  pen,  whether 
they  appeared  as  part  of  the  opinion  or  not.  For  some 
years  Judge  Lyon  remained  alone  in  this  practice,  but  as 
new  judges  came  on  the  bench  his  example  was  followed, 
and  before  he  left  the  bench  every  judge  prepared  his  own 
statement  of  facts,  and  it  is  now  one  of  the  unwritten  rules 
of  the  Court. 

While  the  work  of  the  Court  during  the  first  three  years 
of  Judge  Lyon's  service  was  arduous  and  steadily  increas- 
ing in  volume,  these  years  were  doubtless  pleasant  years  to 


Death  of  Paine  283 

him.  The  judges  were  all  comparatively  young  men  and 
all  vigorous  in  body  and  mind.  Judge  Cole,  who  was  the 
eldest,  was  but  fifty-one  years  of  age  at  the  time  of  Judge 
Lyon's  accession,  while  Judge  Lyon  himself  was  forty-eight 
and  Judge  Dixon  forty-five.  They  were  all  capable  of  hard 
work,  all  intellectually  honest,  and  were  of  congenial  tastes, 
and  dispositions,  and  we  may  be  sure  there  was  very  little 
friction. 


284  The  Story  of  a  Great  Court 


CHAPTER  XXIII 

LYON    V.    PULLING 

Judge  Paine's  term  of  office  would  have  expired  on  the 
first  Monday  of  January,  1872,  and  hence  the  election  for 
the  next  full  term  was  due  in  April,  1871.  Had  Judge 
Paine  lived  he  would  doubtless  have  been  elected  as  his 
own  successor,  without  opposition,  but  his  death,  and  the 
appointment  of  his  successor  by  the  Governor  at  a  time  so 
close  to  the  election  changed  the  situation  radically  in  the 
opinion  of  some  of  the  Democratic  lawyers  and  politicians, 
especially  those  in  the  northern  and  northern  central  por- 
tions of  the  state.  They  said,  and  with  some  degree  of 
truth,  that  a  non-partisan  judiciary  could  only  be  secured 
by  giving  both  parties  representation  on  the  bench,  and  that 
the  Governor  should  have  demonstrated  his  belief  in  the 
principle  by  placing  a  Democrat  upon  the  bench  to  sit  with 
the  two  Republicans  already  there.  However,  Judge  Lyon 
was  on  the  bench  and  his  friends  were  enthusiastically  for 
him,  and  hence,  if  the  Democracy  desired  a  representative, 
there  was  no  way  open  except  to  place  another  candidate 
in  the  field.  By  this  time  the  idea  of  a  party  convention  to 
nominate  judicial  candidates .  seems  to  have  been  perma- 
nently abandoned,  and  the  convention  had  been  succeeded 
by  the  legislative  party  caucus,  which,  after  consultation, 
put  candidates  in  the  field.  In  pursuance  of  this  custom 
legislative  caucuses  were  held  by  both  parties  on  the  even- 
ing of  February  gth.  At  the  Democratic  caucus  Harlow  S. 
Orton,  who  was  then  a  member  of  the  Assembly,  was  nom- 
inated, but  he  immediately  declined  to  run ;  at  the  Repub- 


Lyon  v.  Pulling  285 

lican  caucus  a  resolution  was  unanimously  adopted  which 
ran  as  follows : 

"Whereas,  in  the  opinion  of  the  Republican  state  central  com- 
mittee, it  is  not  deemed  advisable  or  necessary  to  nominate  a 
candidate  in  view  of  the  course  which  has  generally  pursued 
by  the  Republicans  of  this  state  in  selecting  candidates  for 
Judges  of  the  Supreme  Court  without  the  interposition  of  a  nom- 
inating convention,  but  through  the  recommendation  of  the  Re- 
publican members  of  the  legislature  in  session  at  the  Capitol, 
and 

"Whereas,  his  Excellency,  the  Governor,  has  appointed  Hon. 
William  Penn  Lyon  of  Racine  to  serve  out  the  unexpired  term 
of  the  late  Judge  Byron  Paine,  therefore, 

"Resolved,  that  we  recognize  the  appointment  of  Judge  Lyon 
as  one  eminently  fit  to  be  made;  that  in  his  election  to  the  bench 
of  the  Supreme  Court  for  the  full  term  the  people  of  this  state 
will  secure  the  services  of  an  honest  man,  an  able  lawyer,  an 
experienced  jurist,  and  an  incorruptible  judge,  whose  integrity 
is  above  reproach,  a  fit  successor  to  the  lamented  Paine,  a  worthy 
associate  of  the  two  judges  who  have  so  long,  so  ably,  and  so 
well  constituted  a  majority  of  the  Court  and  contributed  to  make 
it  fully  equal  to  any  Court  of  last  resort  in  the  several  states  of 
the  Union;  to  the  intelligent  voters  of  Wisconsin  for  Associate 
Justice  of  the  Supreme  Court  we  recommend  the  election  of  Will- 
iam Penn  Lyon." 

The  declination  of  the  Democratic  caucus  nomination  by 
Mr.  Orton  made  it  seem  for  a  time  as  if  Judge  Lyon  would 
have  no  opponent,  but  there  was  a  feeling  on  the  part  of 
some  Democrats  that  they  ought  to  have  a  representative 
upon  the  bench,  and  that  this  was  the  only  way  to  make  the 
bench  really  non-partisan.  On  March  7th  the  Madison 
State  Journal  stated  that  some  Democratic  papers  in  the 
state  had  placed  Judge  David  J.  Pulling's  name  at  the  head 
of  their  columns,  but  the  Journal  also  stated  that  it  did  not 
believe  he  would  allow  his  name  to  be  used.  In  this,  how- 
ever, the  Journal  was  mistaken.  Judge  Pulling  was  then 
and  had  been  for  some  years  presiding  judge  of  the  third 
judicial  circuit,  which  included  the  county  of  Winnebago 


286  The  Story  of  a  Great  Court 

and  city  of  Oshkosh.  He  was  recognized  as  a  very  able 
lawyer  and  a  nisi  prius  judge  who  dispatched  business  not 
only  with  rapidity  but  with  a  masterly  grasp  of  the  case 
and  the  principles  of  law  involved.  Judge  Pulling  was  un- 
questionably ambitious,  but  he  was  also  an  able  politician, 
and  he  did  not  propose  to  lead  any  forlorn  hope,  or  enter  a 
fight  lost  before  it  was  begun.  It  is  said  in  Berryman's 
Bench  and  Bar  of  Wisconsin  (Vol.  2,  p.  79)  that  "when  first 
called  to  be  a  candidate  he  peremptorily  declined."  How- 
ever, this  may  be,  it  seems  certain  that  he  was  not  averse 
to  making  the  contest  if  he  could  be  convinced  that  he  stood 
a  good  chance  of  election,  and  his  friends  accordingly  took 
steps  to  make  the  call  more  emphatic.  Petitions  were 
largely  circulated  among  the  bar  requesting  him  to  run, 
which  received  many  signatures  and  many  of  the  Demo- 
cratic editors  of  the  state  also  joined  in  the  request.  The 
members  of  the  Democratic  state  central  committee  met 
and  tendered  their  support,  and  on  the  8th  of  March  the 
Democratic  members  of  the  legislature  met  in  caucus  and 
formally  nominated  him. 

On  March  nth  Judge  Pulling  published  an  acceptance, 
addressed  as  follows: 

"To  Hon.  John  W.  Cary  et  al.  members  of  the  bar;  Hon.  Sam. 
Ryan,  Jr.  et  al.  members  of  the  press;  Hon.  Andrew  Proudfit  et 
al.  members  of  the  state  central  committee;  Hon.  P.  V.  Deuster 
et  al.  State  Senators,  and  Hon.  D.  W.  Maxon  et  al.  Members  of 
the  Assembly." 

In  this  acceptance  he  said  in  substance  that  when  a  few 
weeks  earlier  it  was  proposed  that  he  be  nominated  for  the 
position  by  the  Democratic  state  central  committee,  and 
the  Democratic  members  of  the  legislature,  he  declined,  be- 
cause he  believed  the  office  ought  not  to  be  treated  as  a 
purely  political  office,  and  because  his  personal  preferences 
were  opposed  to  running;  but  that,  many  newspapers  hav- 


Lyon  v.  Pulling  287 

ing  put  up  his  name,  and  having  read  the  proceedings  of 
the  Democratic  members  of  the  legislature,  as  well  as  the 
requests  from  the  Democratic  state  central  committee,  and 
from  a  large  number  of  attorneys  of  both  parties,  he  did 
not  feel  at  liberty  to  refuse. 

While  the  campaign  was  quiet,  there  is  no  doubt  that  it 
was  pressed  with  considerable  energy  by  Judge  Pulling 
and  his  partisans.  It  was  a  time  when  the  Republican  dis- 
satisfaction with  President  Grant,  which  resulted  in  the 
Liberal  Republican  movement  in  1872,  was  becoming  acute, 
and  thus  Democrats  were  feeling  somewhat  encouraged. 
The  attempt  was  made  also  to  give  Judge  Pulling's  canvass 
the  character  of  a  non-partisan  movement,  but  without 
much  success.  The  Milwaukee  News  of  March  18th  said 
that  it  was  informed  that  on  the  death  of  Judge  Paine  the 
two  surviving  judges  on  the  Supreme  bench,  Dixon  and 
Cole,  requested  the  Governor  to  appoint  a  Democrat  as 
Paine's  successor.  The  State  Journal  of  March  20th  denied 
this  statement  on  the  authority  of  the  Governor  himself. 
The  Winnebago  County  Press  published  an  article  claiming 
that  at  some  time  in  the  past  Judge  Pulling  in  his  real  estate 
operations  at  Menasha  had  given  to  purchasers  of  land 
deeds  which  he  represented  to  be  full  warranty  deeds,  which 
in  fact  contained  warranties  against  his  own  acts  only,  and 
that  he  had  been  burnt  in  effigy  by  his  victims. 

Judge  Lyon  remained  quietly  at  work  at  his  desk,  al- 
though the  writer  feels  little  doubt,  from  his  own  recollec- 
tion of  the  campaign  made  against  himself  under  somewhat 
similar  circumstances  twenty-four  years  later,  that  the  ex- 
perience was  not  altogether  a  pleasant  one. 

The  election  was  held  on  April  4th,  and  Judge  Lyon  re- 
ceived a  majority  of  11,668  for  the  unexpired  term  of  about 
nine  months,  and    11,647    f°r    the    full    term  of  six  years. 


288  The  Story  of  a  Great  Court 

These  majorities  were  somewhat  greater  than  the  Repub- 
lican majority  at  either  of  three  immediately  preceding 
gubernatorial  elections,  so  that  it  is  evidence  that  the  at- 
tempt by  Judge  Pulling's  friends  to  give  his  candidacy  the 
aspect  of  non-partisanship  was  unsuccessful. 


Dixon's  Notable  Opinions  289 


CHAPTER  XXIV 

SOME  OF  CHIEF  JUSTICE  DIXON'S  NOTABLE  OPINIONS 

Casual  reading  of  Chief  Justice  Dixon's  opinions  leaves 
the  impression  that  they  were  written  easily  and  without 
spending  a  great  deal  of  time  in  polishing  or  cutting  them 
down ;  not  that  they  are  carelessly  written,  but  that  at  times 
they  seem  to  lack  compactness.  There  is  in  them,  however, 
at  all  times  an  abounding  virility,  a  certain  assured  and 
easy  swing  which  comes  from  the  possession  of  intellectual 
strength,  a  power  to  gather  up  the  case  and  consider  it  with 
the  comprehensive  mental  grasp  of  a  master  mind.  His 
literary  style  has  not  the  stately  grandeur  of  Ryan,  nor  the 
remarkable  clarity  of  thought  and  purity  of  diction  of  Paine, 
but  it  has  a  strength  and  convincing  power  which  is  all  its 
own,  and  which  renders  it  impossible,  for  the  writer  at  least, 
to  assign  it  to  position  inferior  to  that  of  either  of  the 
judges  named,  so  far  as  its  merits  as  judicial  writing  are 
concerned. 

In  order  to  judge  of  the  character  and  strength  of  his 
opinions,  it  will  not  be  amiss  to  consider  a  few  of  his  more 
important  cases,  and  give  extracts  from  the  opinions. 

At  the  very  first  term  after  Judge  Dixon's  appointment 
to  the  bench  a  very  interesting  case  involving  the  construc- 
tion of  the  homestead  law  came  before  the  Court.1  This 
law  exempted  from  execution  sale  a  quantity  of  land  (in  a 
city  or  village)  not  exceeding  one-fourth  of  an  acre,  "and 
the  dwelling  house  thereon."  2 


i  Phelps  v.  Roonoy,  9  Wis.  *70. 
2  Sec.  51,  Chap.  102,  Wis.  Stats.  1849. 
19 


290  The  Story  of  a  Great  Court 

A  judgment  debtor  owned  a  three  story  and  basement 
store  building  in  the  city  of  Milwaukee ;  the  basement  and 
first  story  being  rented  for  business  purposes,  and  the  sec- 
ond and  third  stories  being  occupied  by  the  debtor  and  his 
family  as  a  residence.  The  question  was  whether  that  fact 
made  the  entire  building  exempt  as  a  homestead.  In  an 
opinion  by  Judge  Cole,  the  Court  held  (Judge  Dixon  dis- 
senting) that  the  whole  property  was  exempt  as  a  home- 
stead. 

The  case  evidently  appealed  strongly  to  Judge  Dixon's 
sense  of  justice  and  fairness,  and  he  filed  a  strong  and  con- 
vincing dissenting  opinion.  Like  many  other  dissenting 
opinions,  it  forms  more  interesting  reading  than  the  ma- 
jority opinion.  I  do  not  think  this  is  necessarily  proof  that 
it  is  sounder  or  abler.  Dissenting  opinions  are  generally 
written  under  strong  sense  that  the  Court  is  radically  wrong, 
and  then,  too,  there  is  a  sense  of  freedom  which  the  writer 
feels  and  which  enables  him  to  cut  loose  and  discuss  ques- 
tions entirely  fearlessly,  because  he  is  not  speaking  for  the 
Court,  and  placing  on  record  the  law  for  the  future,  but  is 
simply  expressing  his  own  ideas  for  which  no  one  but  him- 
self is  responsible.  Speaking  from  experience,  I  can  say 
that  it  is  frequently  a  luxury  to  write  a  dissenting  opinion. 
The  question  in  the  case  was,  of  course,  whether  this  store 
building  was  in  any  proper  sense  a  "dwelling  house"  within 
the  meaning  of  the  statute,  even  giving  the  statute  the  most 
liberal  construction  possible,  in  order  to  preserve  the  ex- 
emption. Chief  Justice  Dixon  said  not,  and  reinforced  his 
opinion  in  this  fashion : 

"I  think  it  an  utter  perversion  of  language  to  call  this  build- 
ing a  dwelling  house.  It  is  not,  in  any  fair  sense  of  the  word. 
Xo  one  knows  it  as  such;  no  one  calls  it  such.  A  circumstance 
worthy  of  note  here,  and  which  appears  from  the  case,  is,  that 
neither  the  defendant,  nor  any  of  the  witnesses  called  to  testify. 


Dixon's  Notable  Opinions  291 

not  even  those  called  by  him  to  prove  that  it  was  his  dwelling 
house,  call  it  by  that  name.  No  one  ever  seems  to  have  imagined 
that  it  was  a  dwelling  house.  It  seems  to  have  been  left  for  the 
courts  to  make  that  discovery.  The  defendant,  in  his  mortgage, 
called  it  'store  No.  107  East  Water  Street,'  and  every  witness 
spoke  of  it  in  that  way,  or  as  'the  Rooney  store.'  If  the  defend- 
ant had  possessed  a  water  power  upon  the  premises,  which  he 
had  improved  by  the  erection  of  a  mill  or  a  factory,  in  some 
part  of  which  he  resided,  the  result  must  have  been  the  same. 

"We  are  told  in  history  that  Diogenes,  the  celebrated  cynic 
philosopher,  at  one  time  took  up  his  abode  in  a  tub  belonging  to 
the  temple  of  Cybele;  I  suppose  the  tub  became  ipso  facto  a 
dwelling  house  in  the  ordinary  sense  of  that  word,  and  that  here- 
after strict  propriety  of  language  will  require  us  to  say  that  he 
lived  in  a  dwelling  house  belonging  to  the  temple  instead  of  a 
tub.  Nay,  more,  I  suppose  the  moment  the  philosopher  got  into 
the  tub,  the  whole  temple  instantly  became  a  dwelling  house, 
and  that  he  might,  had  he  been  so  inclined,  have  claimed  it  as 
exempt  under  the  operation  of  a  statute  like  ours. 

"If  tomorrow  a  man  in  Madison  should  sell  to  another  a  lot  in 
the  city  of  Milwaukee,  which  the  purchaser  had  never  seen,  and 
should  represent  to  the  purchaser  that  it  had  a  dwelling  house 
upon  it,  and  should  convey  it  as  a  house  and  lot,  and  the  next 
day  the  purchaser  should  go  to  Milwaukee  to  see  his  property, 
I  sincerely  believe,  if  he  had  never  heard  of  the  decision  in  this 
case,  that  he  would  be  surprised  to  find  himself  the  owner  of  a 
lot  with  a  shot  tower  upon  it.  If  afterwards  he  should  return  to 
the  seller  and  complain  of  fraud  and  misrepresentation,  I  sup- 
pose the  justification  of  the  seller  would  be  that  the  courts  had 
decided  that  whatever  building  a  man  lives  in,  is  a  dwelling 
house;  that  at  the  time  he  sold,  his  family  resided  in  the  tower, 
and  therefore  the  purchaser  had  got  what  he  bargained  for.  I 
mention  these  things  for  no  other  purpose  than  to  show  what 
appears  to  me  to  be  the  absurdity  of  the  meaning  attached  to 
the  words  dwelling  house,  and  how  totally  variant  it  is  from 
our  common  understanding  of  them." 

A  motion  for  rehearing  being  made,  Judge  Dixon  wrote 
another  opinion,  elaborating  his  views  and  adopting  the  rule 
of  the  Iowa  Supreme  Court  to  the  effect  that  a  division  of 
the  building  should  in  such  case  be  made  horizontally,  and 
the  non-exempt  part  sold. 


292  The  Story  of  a  Great  Court 

The  question  has  been  presented  in  many  jurisdictions, 
and  it  is  undoubtedly  true  that  the  majority  of  the  courts 
have  held,  as  the  Court  held  in  the  Phelps  case,  that  the  en- 
tire building  must  be  considered  exempt.  Nevertheless,  the 
view  taken  by  the  Cbief  Justice  has  been  approved  by  a 
number  of  courts,  and  the  question  may  be  truly  said  to  be 
doubtful.  The  practical  difficulties  in  the  way  of  a  hori- 
zontal division  constitute  perhaps  the  strongest  argument 
against  Judge  Dixon's  view.  As  most  of  the  states  are  now 
limiting  the  value  of  the  property  which  can  be  held  exempt 
as  a  homestead,  the  question  has  ceased  to  have  the  impor- 
tance which  it  once  had. 

Another  case  at  the  same  term  presented  fully  as  im- 
portant a  question,  namely,  how  far  may  the  legislature 
change  or  curtail  existing  remedies  without  impairing  the 
obligations  of  contracts,  or  infringing  upon  that  certain 
remedy  in  the  law  for  all  wrongs  which  the  constitution 
guarantees  to  every  person.3  The  law  attacked  was  what 
was  called  the  "mortgage  stay  law"  of  1858,4  which  pro- 
vided that  in  actions  to  foreclose  mortgages  executed  prior 
to  its  passage  the  defendants  should  have  six  months'  time 
in  which  to  answer,  instead  of  twenty  days  as  before,  and 
that  the  premises  should  only  be  sold  upon  a  previous  notice 
of  six  months,  instead  of  six  weeks  as  had  been  the  practice. 

This  law  was  plainly  passed  to  give  mortgagors  relief 
from  speedy  foreclosure  in  the  hard  times  following  the 
panic  of  1857,  when  practically  the  whole  state  was  bank- 
rupt. The  Court  reached  the  conclusion  that  the  legislation 
was  constitutional  because,  though  the  remedy  was  altered 
still  a  substantial  remedy  was  left  according  to  the  course 
of  justice  as  it  existed  at  the  time  the  contract  was  made, 


3  Von  Baumbach  v.  Bade,  9  Wis.  *559. 
*  Chap.  113,  Laws  185&. 


Dixon's  Notable  Opinions  293 

or,  in  other  words,  it  was  held  that  the  legislature  may  alter 
and  vary  existing  remedies  so  long  as  a  substantial  remedy 
is  left,  and  the  rights  and  interests  of  the  parties  are  not 
materially  impaired.  This  doctrine  has  been  consistently 
followed  by  the  Court  ever  since  that  case. 

Judge  Paine  concurred  in  the  judgment,  but  filed  a  sep- 
arate opinion,  basing  the  result  on  different  reasoning. 
Both  opinions  are  well  worth  reading,  and  they  furnish  a 
good  concrete  illustration  of  the  differing  mental  character- 
istics of  the  respective  authors. 

In  the  fall  of  1859  Chief  Justice  Dixon  was  confronted 
with  the  mandate    of   the    Supreme    Court    of  the  United 
States  in  the  Booth  case,  and  the  question  whether  that  man- 
date was  to  be  filed  and  obeyed.     He  could  not  settle  this 
question  affirmatively,   because  Judge   Cole's   position  was 
certain  in  favor  of  standing  by  the  former  attitude  of  de- 
fiance, while  Judge    Paine    could    not    sit.      Judge  Dixon 
could  do  nothing   but    define    his   position,  his    vote  would 
avail  nothing  if  against  Judge  Cole's  view.     However,  he 
deemed  it  his  duty  to  investigate  and  determine  the  question 
for  himself,  though  he  must  have  known  that  an  affirmative 
opinion  would  bring  down  on  his  head  the  wrath  of  the 
state  rights  Republicans,  who  were  then  in  command  of  the 
party,  and  probably  work  his  defeat  in  the  approaching  elec- 
tion.   He.  was  then  but  thirty-four  years  of  age,  but  he  pre- 
pared and  filed  what  is  perhaps  his  ablest  opinion  on  a  ques- 
tion  which   was   fully   worthy   of   it.      In   all   the  opinions 
which  have  been  written    on    the    subject    of  the  appellate 
jurisdiction  of  the  federal  Supreme  Court  over  cases  de- 
cided in. the  state  courts,  I  know  of  none  more  satisfactory 
than  this.     After  stating  his  conclusion  that  the  second  sec- 
tion of  the  third  article  of  the  United  States  Constitution 
gives  congress  the  power  to  provide  for  an  appeal  to  the 


294  The  Story  of  a  Great  Court 

federal  Supreme  Court  from  judgments  in  state  courts  in 
the  cases  mentioned  in  the  judiciary  act  of  1789,  he  says:5 

"Under  the  different  circumstances,  I  would  not,  at  the  risk 
of  repeating  what  has  often  been  said  before,  venture  to  assign 
a  reason  for  the  conclusions  to  which  I  have  arrived,  but  would 
content  myself  with  simply  referring  the  reader  to  those  au- 
thorities and  works  where  the  whole  question  will  be  found 
fully  discussed.  But  since,  in  view  of  what  appears  to  have 
been  the  former  solemn  action  of  this  court,  we  have  arrived  at 
a  point  in  our  system  of  double  allegiance,  where  "fidelity  to  the 
state  is  treason  to  the  United  States,  and  treason  to  her,  fidelity 
to  them/'  I  trust  I  shall  be  excused  for  stating,  briefly  as  I  can, 
some  of  the  positions  taken  by  those  who  assert  the  appellate 
jurisdiction,  which  appear  to  me  to  be  unanswerable,  and  which 
in  my  humble  judgment  never  have  been,  and  never  can  be 
shaken  by  those  who  oppose  it. 

"Before  proceeding  to  state  these  views,  I  wish  to  say  that  in 
disposing  of  this  question,  I  have  endeavored  to  decide  it  on  the 
constitution  itself  fairly  and  legitimately  interpreted,  well  re- 
membering 'that  "a  frequent  recurrence  to  fundamental  princi- 
ples," is  the  only  means  of  sustaining  the  government  in  its  orig- 
inal purity,  and  of  preserving  the  original  landmarks  established 
by  its  framers,'  and  believing  that  those  'fundamental  principles' 
are  to  be  found  in  that  instrument  and  not  elsewhere;  and  be- 
lieving, furthermore,  that  if  there  are  evils  fairly  to  be  appre- 
hended from  its  settlement  either  way,  they  are  such  as  are 
necessarily  incident  to  every  form  of  human  government,  and 
that  they  are  not  to  be  remedied  by  any  judicial  powers  of  con- 
struction which  would  give  to  the  government  an  authority 
which  it  does  not  possess,  or  take  from  it  any  which  is  conferred 
by  the  constitution;  but  that  the  remedies  lie  in  the  hands  of 
the  people  who  created  it,  and  who  can  apply  them  or  not,  as  ex- 
perience and  wisdom  shall  dictate.  I  have  not,  therefore,  on  the 
one  hand,  pictured  before  my  mind  a  gloomy  congregation  of  states 
'disrobed'  of  their  sovereignty,  and  prostrated  at  the  feet  of  the 
general  government  by  means  of  federal  usurpation  and  assump- 
tion, nor,  on  the  other,  the  weakened  and  powerless  republic, 
begging  at  the  hands  of  the  mighty  rulers  of  the  states,  the 
privilege  of  executing  her  laws  within  their  borders.  I  have 
not  placed  on  one  side  of  me  the  horrors  of  'consolidation'  and 
'despotism,'  and  on  the  other  those  of  'dissolution'  and  'anarchy,' 


5  Ableman  v.  Booth,  11  Wis.  *498-*503. 


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Reduced    facsimile  of  a    page   from   the   manuscript    opinion  or 
Judge  Dixon  in  Ableman  v.  Booth,  ii   Wis.     198. 


Dixon's  Notable  Opinions  295 


and  endeavored  to  make  choice  between  them.  Neither  have  I 
attempted  nicely  to  adjust  and  balance  the  centripetal  and  centri- 
fugal forces  of  our  government.  These,  though  very  proper  to 
be  considered  in  connection  with  such  a  question,  are  not  the 
considerations  which  should  control  and  govern  the  judicial 
mind.  Its  action  is  to  be  determined  by  the  plain  letter  and 
spirit  of  the  constitution,  leaving  the  adjustment  of  such  mat- 
ters to  the  people  who  made,  and  who  can  unmake  or  amend  it. 
The  judiciary  are  not  responsible  for  the  consequences  whicb 
flow  from  a  proper  construction  of  that  instrument.  While  I 
have  a  bigh  regard  for  those  illustrious  judges  and  statesmen 
wbcse  opinions  I  adopt,  I  trust  it  does  not  diminish  my  respect 
for  those  equally  illustrious,  who  differ  from  them  in  opinion.  I 
have  not  yielded  my  assent  to  the  doctrines  of  the  federal  courts 
through  any  mean  spirit  of  'dignified  judicial  subordination,*  nor 
as  'hoary  usurpation  of  power  and  jurisdiction,  or  time-honored 
encroachments  on  the  reserved  rights  of  the  sovereign  states,' 
rendered  sacred  by  'their  antiquity,'  but  because  I  believe  those 
doctrines  to  be  right.  Neither  policy,  expediency,  'uniformity,' 
the  peculiar  characteristics  of  the  controversy  before  me,  nor 
vague  speculations  upon  possible  events  or  contingencies  which 
may  never  happen  are  the  foundations  upon  which  I  would  frame 
a  legal  conclusion  upon  a  constitutional  question.  With  these 
remarks  I  will  state  the  view  of  the  constitution  which,  for  the 
most  part,  leads  me  to  the  conclusion  to  which  I  have  arrived." 

After  citing  the  federal  cases  of  Martin  v.  Hunter6  and 

Cohens   v.    Virginia,7  where    the    United    States    Supreme 

Court  directly  held   that   the   words  "all  cases   in   law  and 

equity"  in  the  federal  constitution  mean  all  such  cases  in 

any  court,  state  or  federal,  in  which  a  federal  question  is 

raised,  he  says : 

"It  was  further  remarked  by  the  court  that  the  constitution  un- 
avoidably dealt  in  general  language;  that  it  did  not  provide  for 
minute  specification  of  powers,  or  declare  the  means  by  which 
those  powers  should  be  carried  into  execution.  It  was  foreseen 
that  this  would  be  a  difficult  and  perilous  if  not  an  impracticable 
task.  Hence  its  powers  were  expressed  in  general  terms,  leav- 
ing it  to  congress  from  time  to  time  to  adopt  its  own  means  to 


«1  Wheaton,  304. 
f  6  Wheaton,  264. 


296  The  Story  of  a  Great  Court 

carry  into  effect  legitimate  objects,  and  to  mould  and  model  the 
exercise  of  its  powers  as  its  own  wisdom  and  the  public  interests 
should  require.  They  observed  that  a  distinction  seemed  to  be 
drawn  between  the  two  classes  of  cases  enumerated  in  the  con- 
stitution. The  first  class  included  cases  arising  under  the  con- 
stitution, laws  and  treaties  of  the  United  States;  cases  affecting 
ambassadors  and  other  public  ministers  and  consuls,  and  cases 
of  admiralty  and  maritime  jurisdiction.  In  that  class  the  ex- 
pression was  that  the  judicial  power  should  extend  to  all  classes. 
That  as  these  cases  were  of  vital  importance  to  the  sovereignty 
of  the  union,  the  original  or  appellate  jurisdiction  in  them  ought 
therefore  to  be  commensurate  with  the  mischiefs  intended  to  be 
remedied  and  the  policy  in  view.  But  that  in  the  subsequent 
clauses,  which  embraced  all  the  other  cases  of  national  cognizance 
and  formed  the  second  class,  the  constitution  seemed,  ex  indus- 
tria,  to  drop  the  word  all  and  to  extend  the  judicial  authority  not 
to  all  controversies,  but  to  controversies  in  which  the  United 
States  should  be  a  party,  etc.,  leaving  it  to  congress  to  qualify 
the  jurisdiction,  original  or  appellate,  as  sound  policy  might 
dictate.  It  was  furthermore  said  by  the  court  that,  as  the  state 
tribunals  might,  in  the  exercise  of  the  powers  with  which  the 
constitution  found  them  invested,  as  the  courts  of  independent 
sovereignties,  have  and  exercise  concurrent  original  jurisdiction 
over  all  or  some  of  the  cases  provided  for  in  the  constitution, 
and  as  the  constitution  contemplated  that  they  should  exercise 
such  jurisdiction,  and  as  many  cases  under  the  constitution,  laws 
and  treaties  of  the  United  States  might  arise  in  the  state  courts 
which  could  not  originate  or  exist  in  the  federal  courts,  it  would 
necessarily  follow,  if  the  constitution  was  held  to  limit  the  ap- 
pellate jurisdiction  to  cases  pending  in  the  courts  of  the  United 
States,  notwithstanding  the  absolute  and  imperative  language  of 
the  constitution  that,  'the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity  arising  under  this  constitution,'  etc.,  that  there 
would  be  a  very  large  class  of  cases  under  the  first  and  most  im- 
portant clause  of  the  section  which  could  never  be  reached  by 
the  federal  courts,  either  by  virtue  of  their  original  or  appellate 
jurisdiction. 

"It  is  this  conclusion,  to  which  a  denial  of  the  appellate  juris- 
diction inevitably  leads,  that  determines  my  mind  upon  the  ques- 
tion. I  have  looked  in  vain  through  the  arguments  and  com- 
mentaries of  those  who  maintain  that  there  is  no  appellate  juris- 
diction, for  a  satisfactory  answer  to  it,  I  can  find  none.  It  is 
either  passed  in  silence,  or  with  a  few  general  remarks,  founded, 


Dixon's  Notable  Opinions  297 


for  the  most  part,  on  assumptions  which  cannot  be  sustained.  It 
virtually  makes  the  first  and  leading  clause,  which  declares  that 
the  judicial  power  of  the  federal  courts  shall  extend  to  all  cases 
arising  under  the  constitution,  laws  and  treaties  of  the  United 
States,  a  dead  letter — mere  surplusage,  and  limits  those  courts, 
in  a  great  majority  of  instances,  to  taking  jurisdiction  of  such 
cases  merely  as  an  incident  to  the  jurisdiction  which  they  ac- 
quire by  reason  of  the  character  of  the  parties  litigant  under  the 
minor  grants  of  power  contained  in  the  subsequent  part  of  the 
section;  for  all  practical  purposes  under  such  construction,  the 
first  clause  might  as  well  have  been  entirely  omitted.  The  judi- 
cial power  of  the  federal  courts  would  have  been  nearly  as  exten- 
sive, without,  as  with  it,  the  only  difference  being  that  with  it,  a 
shadow  of  power  is  given  with  reference  to  a  particular,  and  by 
far  the  least  numerous  of  any  class  of  cases,  where  otherwise  the 
character  of  the  parties  would  not  confer  jurisdiction;  that  is, 
in  those  cases  where  the  plaintiff  is  able,  from  the  nature  of  his 
case,  to  set  up  in  his  declaration  or  complaint,  some  right  or 
equity  against  the  defendant,  arising  under  the  constitution,  laws 
or  treaties  of  the  United  States.  In  such  cases,  the  facts  con- 
ferring jurisdiction,  would,  by  the  plaintiff's  showing  appear  af- 
firmatively upon  the  record,  and  the  court  might  entertain  the 
case.  Without  the  power  of  appeal,  this,  so  far  as  I  can  see,  is 
the  utmost  practical  effect  that  can  be  given  to  the  clause  in 
question.  Such  a  construction,  if  it  were  not  directly  at  war 
with  the  words  used,  is,  in  my  opinion,  altogether  too  narrow 
and  illiberal.  It  makes  the  provision  altogether  inadequate  for 
the  ends  designed  to  be  attained  by  it,  viz:  Protection  and  preser- 
vation to  the  government,  by  means  of  its  own  judiciary,  and  an 
equal  regard  to  the  constitutional  rights  of  all  of  its  citizens." 

Two  important  cases,  involving  serious  questions  of  cor- 
porate and  legislative  power,  were  presented  at  the  June 
term,  i860,  and  in  both  cases  the  opinions  were  written  by 
the  Chief  Justice.8  In  the  first  of  these  cases  the  question 
was  whether  the  legislature  could  directly  or  indirectly  di- 
vest a  municipal  corporation  of  its  private  property  without 
the  consent  of  its  inhabitants,  and  the  question  was  an- 
swered in  the  negative. 


s  Town  of  Milwaukee  v.  City  of  Milwaukee,  12  Wis.  *93;    Has- 
brouck  v.  City  of  Milwaukee,  13  Wis.  *37. 


298  The  Story  of  a  Great  Court 

In  the  second  case  cited,  the  city  of  Milwaukee  had  been 
authorized  by  legislative  act  to  expend  $100,000  in  building 
a  harbor,  and  issue  bonds  to  pay  therefor ;  the  city  pro- 
ceeded to  expend  not  only  the  $100,000,  but  made  contracts 
far  in  excess  of  that  sum ;  the  contractor  completed  the 
work,  and  a  further  act  of  the  legislature  was  then  passed 
authorizing  the  city  to  issue  such  amount  of  bonds  as  might 
be  necessary  to  complete  the  harbor,  but  the  city  issued  no 
bonds  under  it.  The  contractor  then  brought  action  against 
the  city  for  the  balance  of  the  contract  price  exceeding  the 
$100,000,  and  the  question  was  whether  the  city  was  liable 
for  this  excess.  The  Court  held  that  the  city  had  not  the 
power  to  engage  in  a  work  of  internal  improvement  like 
building  a  harbor,  without  specific  legislative  authority ;  that 
the  contracts  providing  for  a  greater  expenditure  than 
$100,000  were  void  as  to  the  excess,  for  want  of  corporate 
power,  and  that  the  subsequent  act  authorizing  the  issue  of 
bonds  for  the  excess  was  not  sufficient  proprio  vigore  to 
constitute  a  ratification,  and  that  only  evidence  showing  that 
such  act  was  procured  with  the  assent  of  the  corporation  or 
had  been  subsequently  acted  upon  or  confirmed  by  it  would 
make  it  available  as  a  ratification  which  would  bind  the  cor- 
poration. 

Probably  the  most  frequently  quoted  opinion  which  Chief 
Justice  Dixon  ever  wrote  is  the  opinion  in  the  Kellogg  case, 
which  came  up  at  the  January  term,  1871.  This  was  the 
case  in  which  the  doctrine  of  proximate  cause  in  negligence 
actions  was  first  extensively  discussed  and  settled  in  accord- 
ance not  only  with  reason,  but  with  the  great  mass  of  deci- 
sion which  has  followed  since  that  time.  Though  not  per- 
haps entitled  to  the    name    of   a    pioneer  case,  still    it  may 


"Kellogg  v    C.  &  N.  W.  Ry.  Co.  26  Wis.  233. 


Dixon's  Notable  Opinions  299 

truthfully  be  said  to  be  one  of  the  first  to  luminously  treat 
and  settle  the  very  important  question  as  to  what  may  be 
considered  the  proximate  cause  of  an  injury  in  that  vast 
flood  of  negligence  actions  which  was  then  beginning. 

The  action  was  brought  against  the  railway  company, 
charging  that  it  allowed  great  quantities  of  dry  grass  and 
weeds  to  accumulate  on  its  right  of  way,  and  that  they  were 
set  on  fire  by  sparks  from  its  engines,  which  fire  was  carried 
by  the  wind  to  the  adjoining  field  of  the  plaintiff,  and  totally 
destroyed  his  stacks  of  grain.  The  argument  of  the  rail- 
road company  was  that  the  plaintiff's  damages  were  too 
remote  from  the  alleged  act  of  negligence,  and  resulted  from 
intervening  independent  causes,  such  as  a  strong  wind 
which  was  blowing,  and  the  extreme  dryness  of  the  time. 

The  first  opinion  in  the  case  is  quite  brief,  and  by  no 
means  forms  a  satisfactory  treatment  of  the  question,  and 
Judge  Paine  filed  a  dissenting  opinion.  On  motion  for  re- 
hearing, however,  the  Chief  Justice  wrote  a  very  exhaustive 
and  satisfactory  opinion,  discussing  the  question  fully,  both 
upon  reason  and  in  the  light  of  the  limited  number  of  au- 
thorities, English  and  American,  then  in  existence,  bearing 
on  the  subject,  and  lays  down  substantially  the  rule  which 
has  been  followed  ever  since,  both  in  this  jurisdiction  and 
in  the  great  majority  of  other  jurisdictions,  that,  where  an 
injury  is  the  natural  and  probable,  though  not  the  necessary, 
consequence  of  a  negligent  act,  and  one  reasonably  to  be 
anticipated  according  to  the  usual  experience  of  mankind, 
the  negligent  act  is  the  proximate  cause  of  the  injury.  It  is 
in  all  respects  a  very  satisfactory  opinion,  but  I  have  found 
no  way  of  making  an  extract  from  it  which  would  give  any 
adequate  idea  of  its  quality,  and  I  leave  the  reader  to  exam- 
ine it  for  himself. 


300  The  Story  of  a  Great  Court 

Fully  as  interesting  was  the  question  presented  in  Sutton 
V.  IVauwatosa,10  which  was  whether  a  man  driving  cattle  to 
market  on  Sunday  in  violation  of  the  Sunday  law  could  re- 
cover damages  of  a  town  on  account  of  a  defective  highway 
bridge,  which  gave  way  under  the  cattle,  and  killed  some 
of  them.  Did  his  violation  of  the  Sunday  law  bar  him  from 
recovering? 

There  were  Massachusetts  decisions  holding  in  the  affirm- 
ative, but  the  Chief  Justice  discusses  the  question  most  satis- 
factorily, and  comes  to  the  conclusion  that  the  doing  of  an 
unlawful  act  at  the  time  of  the  injury  will  not  prevent  a  re- 
covery, unless  the  act  was  of  such  a  character  as  would 
naturally  tend  to  produce  the  injury ;  and  the  driving  of  the 
cattle  to  market  on  Sunday  would  not  tend  to  break  down 
the  bridge  any  more  than  the  same  act  on  Monday. 

In  discussing  the  question,  he  says: 

"In  the  present  case  the  weight  of  the  same  cattle,  upon  the 
same  bridge,  either  the  day  before  or  the  day  after  the  event 
complained  of,  when  the  plaintiff  would  have  been  guilty  of  no 
violation  of  law  in  driving  them  would  most  unquestionably 
have  produced  the  same  injurious  result.  And  if,  on  that  day 
even,  the  driving  had  been  a  work  of  necessity  or  charity,  as  if 
the  city  of  Milwaukee  had  been  in  great  part  destroyed  by  fire, 
as  Chicago  recently  was,  and  great  numbers  of  her  inhabitants 
in  a  condition  of  helplessness  and  starvation,  and  the  plaintiff 
hurrying  up  his  drove  of  beef  cattle  for  their  relief,  no  one 
doubts  the  same  accident  would  then  have  happened,  and  the 
same  injuries  ensued.  The  law  of  gravitation  would  not  then 
have  been  suspended,  nor  would  the  rotten  and  defective  stringers 
have  refused  to  give  way  under  the  superincumbent  weight,  pre- 
cisely as  they  did  do  on  the  present  occasion.  There  are"  many 
other  violations  of  law,  which  the  traveller  or  other  person  pass- 
ing along  the  highway  may,  at  the  time  he  receives  an  injury 
from  a  defect  in  it,  be  in  the  act  of  committing,  and  which  are 
quite  as  closely  connected  with  the  injury,  or  the  cause  of  it,  a3 
is  the  violation  of  which  complaint  is  made  against  the  present 


i<>  29  Wis.  21. 


Dixon's  Notable  Opinions  301 

plaintiff.  He  may  be  engaged  in  cruelly  beating  or  torturing  his 
horse,  or  ox,  or  other  animal;  he  may  be  in  the  pursuit  of  game, 
with  intent  to  kill  or  destroy  it,  at  a  season  of  the  year  when 
this  is  prohibited;  he  may  be  exposing  game  for  sale,  or  have 
it  in  his  possession,  when  these  are  unlawful;  he  may  be  in  the 
act  of  committing  an  assault,  or  resisting  an  officer;  he  may  be 
fraudulently  passing  a  toll  gate,  without  paying  his  toll;  and  he 
may  be  unlawfully  setting  or  using  a  net  or  seine,  for  the  purpose 
of  catching  fish,  in  an  inland  lake  or  stream. 

"All  of  these  acts  prohibited  by  the  same  chapter  or  statute 
in  which  we  find  the  prohibition  from  work  and  labor  on  Sun- 
day, and  some  of  them  under  the  same,  but  most  under  a  greater 
penalty  than  is  prescribed  for  that  offense,  thus  showing  the 
character  or  degree  of  culpability  which  was  variously  attached 
to  them  in  the  opinion  of  the  legislature.  And  there  are  many 
other  minor  offenses,  mala  prohibita  merely,  created  by  statute, 
which  might  be  in  like  manner  committed.  There  are  in  Massa- 
chusetts, and  doubtless  in  many  of  the  states,  statutes  against 
blasphemy  and  profane  cursing  and  swearing,  the  prevention  of 
which  seems  to  be  equally  if  not  more  an  object  of  solicitude  and 
care  on  the  part  of  the  legislature,  than  the  prevention  of  labor, 
travel  or  other  secular  pursuits  on  Sunday,  because  more  se- 
verely punished.  It  has  not  yet  transpired  we  believe,  even  in 
Massachusetts,  that  the  action  of  any  person  to  recover  damages 
for  an  injury  sustained  by  reason  of  defects  in  a  highway,  has 
been  peremptorily  dismissed  because  he  was  engaged  at  the  time 
in  profane  cursing  or  swearing,  or  because  he  was  in  a  state  of 
voluntary  intoxication,  likewise  prohibited  under  penalty  by 
statute." 

The  doctrine  of  the  Sutton  case  has  been  approved  in 
many  jurisdictions,  and  may  be  said  to  be  the  law  of  the 
land  ;  in  Massachusetts  the  legislature  has  come  to  the  re- 
lief of  the  courts,  and  provided  that  the  provisions  of  the 
Sunday  law  shall  not  constitute  a  defense  to  an  action  for 
injury  suffered  by  a  person  on  that  day. 

Many  other  important  opinions  by  Chief  Justice  Dixon 
might  well  be  cited  and  quoted  from,  but  it  is  not  within 
the  scope  of  this  work  to  follow  the  course  of  mere  private 
litigation.  Enough  examples  of  his  opinions  have  already 
been  given  to  demonstrate  their  high  quality.     One  opinion, 


302  The  Story  of  a  Great  Court 

unique  in  the  occasion  which  called  it  forth,  as  well  as  the 
circumstance  that  no  action  was  pending  when  it  was  writ- 
ten and  filed,  seems  to  deserve  mention. 

When  in  January,  1874,  a  change  of  administration  took 
place,  and  the  Democratic,  or  reform,  administration  came 
in  with  Governor  Taylor,  there  was  great  pressure  for  jobs 
about  the  capitol  by  the  privates  in  the  victorious  political 
army.  The  position  of  crier  or  janitor  in  the  Supreme 
Court  had  always  been  filled  by  the  Court  itself,  and  was 
at  this  time  held  by  Christian  Henry  Beyler,  a  very  com- 
petent and  satisfactory  employee.  The  longing  eyes  of  a 
perspiring  patriot  discovered  the  place,  however,  and  the 
superintendent  of  public  property  assumed  to  remove  Mr. 
Beyler  and  appoint  the  patriot  in  his  place.  The  new  ap- 
pointee came  and  saw,  but  can  not  be  said  to  have  con- 
quered. The  members  of  the  Court  concluded  that  the  time 
had  come  to  demonstrate  that  the  Court  had  power  to  choose 
its  own  bailiff,  and  the  Chief  Justice  wrote  and  filed  one 
of  his  most  vigorous  opinions  in  vindication  of  that  power.11 

In  this  opinion,  after  stating  that  the  members  of  the 
Court,  in  order  to  avoid  unpleasantness,  had  made  applica- 
tion to  the  superintendent  of  public  property  to  withdraw 
his  interference  and  allow  the  service  to  remain  as  it  was, 

he  says : 

"Fortunately  for  the  members  of  the  court  and  for  the  public 
service  in  which  they  are  engaged,  they  are  left  in  no  such  atti- 
tude of  humiliation  as  compels  them  to  petition  the  superintend- 
ent, or  any  other  administrative  or  executive  offer,  to  redress 
the  wrong;  nor  are  they  obliged  to  suffer  the  inconveniences  and 
trouble  which  must  flow  from  it  if  not  so  redressed.  It  is  a 
power  inherent  in  every  court  of  record,  and  especially  courts 
of  last  resort,  to  appoint  such  assistants;  and  the  court  itself  is 
to  judge  of  the  necessity.  This  principle  is  well  settled  and 
familiar,  and  the  power  so  essential  to  the  expedition  and  proper 


«  In  Re  Janitor,  35  Wis.  410. 


Dixon's  Notable  Opinions  303 

conducting  of  judicial  business,  that  it  may  be  looked  upon  as 
very  doubtful  whether  the  court  can  be  deprived  of  it.  As  a 
power  judicial  and  not  executive  or  legislative  in  its  nature,  and 
one  lodged  in  a  co-ordinate  branch  of  the  government  separate 
and  independent  in  its  sphere  of  action  from  the  other  branches, 
it  seems  to  be  under  the  protection  of  the  constitution,  and 
therefore  a  power  which  cannot  be  taken  from  the  court,  and 
given  to  either  the  executive  or  legislative  departments,  or  to 
any  officer  of  either  of  those  departments." 

This  language  seems  sufficiently  definite  and  positive,  but 
when  he  reaches  the  end  of  the  opinion  there  is  a  note  of 
defiance  which  clearly  shows  the  very  serious  character  of 
the  clash.  After  stating  that  the  conclusion  of  the  Court  is 
that  the  power  to  appoint  and  remove  is  possessed  by  the 
Court  alone  and  that  the  janitor  theretofore  appointed  must 
be  retained  until  his  resignation  or  removal  by  the  Court 
with  the  same  compensation  as  before,  he  says : 

"In  case  his  name  shall  be  omitted  by  the  superintendent  from 
the  pay-roll,  so  that  his  compensation  cannot  be  made  to  him 
monthly  as  heretofore,  it  will  devolve  upon  the  next  legislature 
to  make  the  requisite  appropriation  and  likewise  to  provide 
against  the  recurrence  of  similar  contingencies  in  the  future.  It 
is  not  within  the  range  of  presumption,  or  a  supposition  to  be  for 
a  moment  indulged,  that  any  legislative  body  will  neglect  or 
refuse  to  make  such  appropriation  or  to  enact  suitable  measures 
for  the  future;  but  if  it  should  refuse  to  appropriate,  the  ap- 
pointee will  have  his  remedy  by  action  against  the  state  in  the 
manner  prescribed  by  law." 

It  is  perhaps  unnecessary  to  say  that  the  Court  retained 
its  janitor,  and  that  there  have  been  no  further  attempts 
by  either  legislative  or  executive  power  to  interfere  with 
such  appointments. 

As  the  end  of  his  term  approached,  Chief  Justice  Dixon 
became  more  and  more  dissatisfied  with  his  financial  situa- 
tion. He  was  now  receiving  a  salary  of  $4,000  a  year,  and 
if  he  should  be  re-elected  in  the  spring  of  1875  he  would  re- 
ceive $5,000  per  annum  after  the  first  Monday  in  January, 


304  The  Story  of  a  Great  Court 

1876.  This,  however,  was  no  great  inducement.  He  was 
conscious  of  his  abilities,  and  well  aware  that  if  he  were  at 
the  bar  he  could  command  compensation  almost  princely  in 
comparison  to  the  salary.  He  saw  his  youth  and  manhood 
slipping  by  with  ever  accelerating  speed,  and  each  year  he 
found  himself  in  deeper  financial  difficulties. 

He  therefore  determined  definitely  to  resign,  and  in  June, 
1874,  he  tendered  his  resignation  to  the  Governor,  and 
formed  a  law  partnership  in  Milwaukee. 


Edward  George  Ryan  305 


CHAPTER  XXV 


EDWARD  GEORGE  RYAN 


Upon  receipt  of  Chief  Justice  Dixon's  resignation,  Gov- 
ernor William  R.  Taylor  first  offered  the  position  to  Colonel 
William  F.  Vilas,  then  not  quite  thirty-four  years  of  age, 
but  doubtless  the  most  brilliant  of  the  younger  generation 
of  lawyers  in  the  state.  It  must  have  seemed  a  glittering 
prize  to  the  future  statesman,  but  he  declined,  as  it  is  said, 
on  the  advice  of  his  father,  who  thought  the  future  had 
greater  rewards  in  store  for  his  gifted  son  if  he  remained 
in  the  practice. 

Thereupon  on  the  17th  day  of  June,  1874,  the  Governor 
appointed  Edward  George  Ryan  of  Milwaukee  to  the  vacant 
seat,  and  the  appointment  was  at  once  accepted.  The  ap- 
pointment was  quite  favorably  received  by  the  press  and 
public,  although  with  considerable  surprise.  It  was  by  no 
means  the  case  of  the  appointment  of  an  unknown  or  ob- 
scure person  to  high  office.  Mr.  Ryan  was  very  far  from 
that,  as  we  have  already  seen ;  he  had  on  numerous  occa- 
sions taken  a  commanding  part  in  matters  of  the  highest 
importance  in  the  political  and  judicial  history  of  the  state, 
and  had  demonstrated  beyond  cavil  or  doubt  his  great  abili- 
ties as  an  advocate,  an  orator  and  a  scholar.  But  it  may 
fairly  be  said  that  there  was  a  widespread  doubt  as  to 
whether  his  abilities,  great  as  they  confessedly  were,  were 
of  the  character  which  would  render  him  a  great  or  suc- 
cessful judge.  He  was  nearly  sixty-four  years  of  age,  his 
temper  was  known  to  be  uncertain  and  at  times  violent,  he 
had  had  no  experience  upon  the  bench,  his  entire  profes- 
20 


306  The  Story  of  a  Great  Court 

sional  life  had  been  spent  at  the  bar,  the  great  cases  in 
which  he  had  appeared  were  of  the  kind  which  aroused  the 
deepest  passions  and  party  feelings,  and  it  was  felt  that 
the  great  qualities  which  had  given  him  prominence  as  an 
orator  and  advocate  were  not  of  the  kind  which  would  tend 
to  promote  success  upon  the  bench.  Thus  the  appointment 
was  in  many  quarters  looked  upon  as  an  experiment,  and, 
at  the  best,  a  doubtful  one. 

However,  the  experiment  was  made  and  Judge  Ryan  took 
his  seat  with  the  good  will  and  good  wishes  of  all,  and  for 
more  than  six  years  presided  in  the  highest  tribunal  of  the 
state,  and  during  that  six  years  he  not  only  dispelled  the 
doubts  which  followed  his  appointment,  but  added  vastly  to 
the  standing  and  prestige  of  a  Court  which  already  stood 
high  among  the  courts  of  the  nation,  and  in  his  opinions 
upon  great  questions  left  a  monument  to  his  memory  more 
enduring  than  brass  or  marble. 

More  than  a  score  of  years  have  now  passed  since  his 
death  ;  the  mists  of  passion  and  prejudice  have  passed  away  ; 
the  clamor  of  the  political  partisan  has  ceased ;  time  has 
drawn  the  kindly  mantle  of  forgiveness,  if  not  of  forget- 
fulness,  over  all  mere  infirmities  of  temper,  and  the  time 
has  come  when  a  just  and  appreciative  estimate  may  well  be 
made  of  the  character  and  abilities  of  this  great  man. 

A  few  months  before  his  death,  during  the  early  part  of 
the  year  1880,  he  was  applied  to  by  a  Mr.  Reed,  who  was 
preparing  a  book  on  the  Bench  and  Bar  of  Wisconsin,  for 
some  biographical  material;  after  considerable  urging  he 
wrote  a  brief  sketch  of  his  life  in  a  letter  to  his  son  Hugh 
(now  a  prominent  lawyer  of  Milwaukee)  and  authorized 
him  to  make  such  use  of  it  as  he  chose  in  preparing  an 
article  for  Mr.  Reed.     This,  I  believe,  is  the  only  written 


Edward  George  Ryan  307 

document  left  by  the  Chief  Justice  relating  to  the  history  of 
his  life.     It  is  dated  July  2,  1880,  and  reads  as  follows : 

"I  was  born  at  New  Castle  House,  my  father's  residence,  near 
the  village  of  Enfield  in  the  County  of  Meath  (Ireland)  Novem- 
ber 13,  1810.  My  father,  Edward  Ryan,  was  a  son  of  the  family 
of  Ryan  of  Ballinakill.  He  had  married  Abby,  eldest  daughter 
of  John  Keogh  of  Mt.  Jerome,  the  chairman  of  the  famous  Cath- 
olic committee.  At  the  time  of  my  birth,  my  father  was  a  pros- 
perous man,  the  owner  of  lands  purchased  in  part  with  the  for- 
tune he  received  with  my  mother.  Between  the  peace  of  1815 
and  the  passage  of  the  Corn  Laws  he  was  ruined  as  almost  all 
others  were  who  owed  money  on  land.  He  then  removed  to 
Blackhall  in  the  County  of  Kildare,  which  he  rented  and  where 
he  lived  till  near  his  death,  barely  supporting  his  family.  My 
mother's  father  was  a  very  wealthy  man  who  died  while  I  was  a 
mere  youngster.  He  left  an  annuity  to  my  mother  for  the  pur- 
pose of  educating  her  children.  There  were  ten  of  us,  and  we 
all  received  an  excellent  education.  I  received  mine  at  Clon- 
gowes  Wood  College,  where  I  remained  for  seven  years,  from 
1820  to  1827.  I  was  always  destined  for  the  law,  in  the  study  of 
which  I  was  nominally  engaged  in  1828  and  1829.  But  I  was 
an  expensive  and  improvident  youth,  and  a  great  burden  to  my 
father.  I  had  exaggerated  notions  of  the  ease  with  which  men 
get  on  in  this  country,  and  I  finally  obtained  my  father's  consent 
to  come  here.  So  I  came  in  1830.  I  did  not  know  then,  but 
have  long  since  known  that  my  father  expected  me  to  fail  and 
to  return  to  Ireland.  I  was  too  proud  to  do  so.  I  studied  law 
in  New  York,  as  I  could,  supporting  myself  by  teaching.  I  was 
admitted  in  1836  and  came  that  year  to  Chicago.  Up  to  that  time 
I  had  never  known  what  sickness  was,  but  I  was  particularly 
subject  to  miasmatic  diseases,  and  I  was  in  very  poor  health  dur- 
ing the  whole  time  I  remained  in  Chicago. 

"In  1842  I  was  married  to  your  mother,  Mary,  eldest  daughter 
of  Hugh  Graham,  and  immediately  moved  to  Racine.  I  lost  your 
mother  in  1847,  and,  as  soon  as  I  rallied  from  the  blow,  prepared 
to  move  to  Milwaukee,  and  moved  there  in  December,  1848. 
When  I  first  went  to  Racine  it  seemed  doubtful  which  would  be 
the  larger  place;  that  doubt  was  settled  long  before  I  moved.     In 

1850  I  was  married  to  Caroline  Willard,  daughter  of  

Pierce  of  Newburyport,  Mass.  The  rest  you  know  as  well  as  I. 
Above  you  have  the  outlines  of  my  life.  You  can  fill  it  up  for 
Mr.  Reed,  using  no  superlatives  and  making  it  a  mere  biography.' 
I  gave  the  same  data  to  the  late  Colonel  Slaughter,  who  wrote 


308  The  Story  of  a  Great  Court 

an  extravagant  panegyric,  of  which  I  was  heartily  ashamed.  I 
have  an  instinctive  aversion  to  putting  my  face,  of  which  I  am 
not  proud,  in  a  book,  and  I  have  a  perfect  horror  of  the  distorted 
caricatures  of  wood  cuts  which  they  put  in  Wisconsin  publica- 
tions." 

Here  the  autobiographical  sketch  ceases.  None  can  ac- 
cuse its  author  of  egotism. 

He  had  reached  the  ripe  age  of  three  score  years  and  ten 
when  he  wrote  the  foregoing.  While  his  life  has  been  full 
of  disappointments,  and  had  resulted  in  failure  from  a  finan- 
cial point  of  view,  it  had  been  tumultuous  and  stirring ;  he 
had  played  the  leading  part  in  many  a  serious  drama  that 
had  moved  the  great  heart  of  the  public  to  the  utmost; 
he  had  had  great  opportunities  and  he  had  seized  some  of 
them  and  scored  brilliant  intellectual  triumphs ;  he  had  been 
abused,  maligned  and  condemned,  but  his  great  abilities 
had  never  been  questioned ;  his  life  had  been  one  of  storm 
and  stress,  like  a  day  full  of  darkness  and  tempest,  but  made 
glorious  by  a  great  burst  of  golden  light  flooding  the  sky 
at  its  close. 

Such  being  the  case,  this  brief  record  of  his  life  must  be 
considered  as  provokingly  meagre  and  unsatisfactory.  The 
outlines  certainly  need  filling  up.  though  the  limits  of  this 
work  will  not  admit  of  great  detail. 

Mr.  Ryan  was  of  Roman  Catholic  parentage,  and  was 
baptized  when  six  days  old  by  the  Rev.  Lawrence  Graham 
R.  C,  Pastor  of  the  parish  of  Rathcone.  This  appears  by 
a  certificate  found  among  Judge  Ryan's  papers,  dated  March 
4,  1834,  signed  by  the  reverend  gentleman  himself,  who,  it 
seems,  was  still  after  the  lapse  of  twenty-four  years  pastor 
of  the  parish.  When  and  why  he  left  that  communion  and 
attended  the  services  of  the  Episcopal  church  I  have  been 
unable  to  ascertain.  I  judge  from  the  tone  of  one  of  his 
essays,  which  I  shall  hereafter  refer  to,  that  he  rejected  the 


Edward  George  Ryan  309 

claims  of  the  church  to  settle  authoritatively  and  finally  all 
questions  of  belief,  but  this  is  mere  surmise. 

I  have  found  nothing  that  throws  any  light  on  his  life  in 
New  York  further  than  he  himself  has  told  us.  Doubtless 
it  was  a  period  of  hard  work  and  poverty.  He  received  his 
second  naturalization  papers  April  9,  1836,  and  was  ad- 
mitted to  the  bar  May  13th  following.  He  soon  came  to 
Chicago.  His  practice  here  was  not  so  engrossing  as  to 
occupy  all  of  his  time,  but  his  active  mind  could  not  brook 
idleness  and  he  became  in  1839  tne  editor  of  a  Democratic 
paper  called  the  Tribune,  through  which  for  about  two 
years  he  gave  expression  to  his  views  upon  the  politics  of 
the  day  in  vigorous  English  and  stately  periods  which  must 
have  spent  their  force  far  above  the  heads  of  the  frontier 
community  at  which  they  were  levelled.  The  paper  died 
in  1 84 1.  I  find  among  his  papers  a  commission  signed  by 
Thomas  Carlin,  Governor,  and  Lyman  Trumbull,  Secretary 
of  State,  dated  March  4,  1841,  appointing  him  State's  At- 
torney for  the  7th  Judicial  Circuit  of  Illinois.  Whether  his 
term  of  office  expired,  or  whether  he  resigned  I  do  not 
know,  but  evidently  he  tired  of  Chicago,  and  came  to  Ra- 
cine with  his  young  wife  in  1842.  While  living  here  he  was 
elected  a  delegate  to  the  first  constitutional  convention  held 
in  1846,  and  took  a  very  prominent  part  in  the  debates  of 
that  body.  After  his  removal  to  Milwaukee  he  was  asso- 
ciated at  different  times  as  partner  with  a  number  of  prom- 
inent lawyers,  among  whom  were  Judge  J.  G.  Jenkins  and 
Sen.  M.  H.  Carpenter,  and  he  was  engaged  in  many  impor- 
tant causes,  some  of  which  were  of  state  and  even  national 
importance,  which  will  be  referred  to  later  in  this  volume. 
During  the  years  1870,  1871  and  1873  he  was  City  Attorney 
of  the  city  of  Milwaukee,  and  in  June,  1874,  as  before  stated,' 
he  was  called  by  the  Governor  to  be  Chief  Justice  of  the 


3 1 0  The  Story  of  a  Great  Court 

State.     This  appointment  crowned  a  long  and  troubled  life. 
Don  knew  his  own  abilities  as  well  as  his  infirmities 

full  well.  When  he  was  appointed  he  said,  "This  is  the  sum- 
mit of  my  ambition,  it  is  the  place  to  which  I  have  looked, 
but  it  has  been  so  delayed  that  I  have  ceased  to  expect  it." 
is  physical  appearance  is  thus  described  in  the  book 
called  "Fathers  of  Wisconsin:" 

"In  person  Mr.  Ryan  is  five  feet  ten  inches  in  height,  weighs 
about  ISO  pounds,  neither  of  robust  nor  delicate  frame,  but  mus- 
cular, sinewy  and  capable  of  much  long  and  continued  labor. 
His  movements  are  quick,  and  his  step  elastic;  his  complexion 
is  florid,  his  hair  light,  his  eyes  blue,  large  and  expressive." 

Although  1  saw  him  in  my  boyhood  at  a  time  when  he 
was  perhaps  fifty  years  of  age,  I  do  not  remember  his  ap- 
pearance at  that  time,  and  my  only  distinct  recollection  of 
his  personality  is  that  which  is  left  on  my  memory  by  his  ap- 
pearance upon  the  supreme  bench.  He  was  then  quite 
bowed  by  age,  and  his  walk  was  plainly  infirm,  but  the  pierc- 
ing brilliancy  of  the  eyes,  which  seemed  almost  starting  from 
from  his  head  as  he  bent  them  upon  a  lawyer  who  was  argu- 
ing a  case  before  him,  I  shall  never  forget.  He  was  a  good 
listener ;  he  apparently  gave  his  whole  mind  to  the  case, 
and  it  always  seemed  to  me  that  he  was  dissecting  the  case 
and  the  argument  in  his  mind.  With  that  gaze  bent  upon 
one,  pettifogging  seemed  out  of  the  question,  and  any  at- 
tempt to  lead  the  judicial  mind  astray  worse  than  useless. 
His  features  were  large  and  striking,  rather  than  handsome ; 
his  face  would  attract  attention  at  any  time  and  in  any  com- 
pany, but  when  illuminated  by  the  fire  of  intellectual  combat 
the  eyes  blazed,  and  the  whole  countenance  seemed  leonine 
in  its  strength. 

Chief  Justice  Cole  in  reply  to  the  addresses  of  the  bar 
after  Judge  Ryan's  death,  referred  to  him  as  having  a  "sus- 
ceptible" temper.     This  mild  expression  was  characteristic- 


Edward  George  Ryan  3 1  1 

ally  kind,  but  extremely  inadequate.  From  his  very  youth 
Mr.  Ryan  was  afflicted  with  a  violent  temper.  It  was  un- 
reasoning and  unreasonable.  The  most  trivial  incidents 
aroused  his  anger,  and  when  aroused  it  was  almost  impossi- 
ble to  appease  it.  By  his  ebullitions  of  temper  he  drove  his 
clients  from  his  door  and  well  nigh  wrecked  his  profes- 
sional career.  He  made  bitter  enemies  without  necessity  or 
reason,  and  alienated  those  who  would  fain  have  been  his 
friends.  This  failing  was  the  curse  of  his  whole  life,  it  was 
the  greatest  weakness  in  a  character  which  in  other  respects 
had  most  if  not  all  of  the  elements  of  true  greatness. 

In  an  eloquent  and  discriminating  eulogy  delivered  by  ex- 
Senator  Vilas  before  the  Supreme  Court  soon  after  Judge 
Ryan's  death,1  he  truly  said  of  this  failing:  "The  chiefest 
misfortune  of  his  life  was  his  weakness  in  presence  of  his 
own  passion.  That  subdued  and  governed  him,  turning  his 
power  to  his  own  destruction.  It  made  him  terrible  to  his 
friends  as  well  as  his  enemies ;  tyrannical,  perhaps  some- 
times cruel,  where  he  should  have  been  tender  and  loving; 
suspicious  and  jealous  where  he  should  have  been  confiding; 
violent  and  hostile  where  he  ought  to  have  been  friendly. 
It  led  him  into  false  positions  from  which  he  was  too  proud 
to  withdraw.  It  stood  in  the  path  of  his  advancement  among 
men  like  a  flaming  sword.  It  turned  friends  into  enemies 
and  froze  off  the  tendrils  of  life.  It  brought  humiliation, 
grief  and  loneliness  to  his  soul  and  his  hearthstone."  Judge 
Jenkins,  upon  the  same  occasion,  said  of  this  same  failing, 
"The  life  of  Judge  Ryan  was  one  long  struggle — a  struggle 
against  himself,  a  struggle  against  untoward  fortune,  a 
struggle  against  infirmity  which  the  world  knew  little  of  and 
allowed  not  for.  And  so  to  most  men  he  seemed  arrogant 
and  proud,  whereas  to  those  who  knew  him  best  he  was,- 


i  50  Wis.  23. 


3 1 2  The  Story  of  a  Great  Court 

when  acquit  of  infirmity,  compassionate  and  considerate." 
I  shall  not  dwell  upon  this  serious  infirmity  of  temperament. 
It  was  an  inborn,  not  an  acquired  or  cultivated  failing; 
doubtless  it  was  greatly  aggravated  by  his  ill-health  in  later 
years ;  its  most  serious  effects  descended  upon  his  own  head ; 
it  seemed  necessary  to  speak  of  it,  however,  in  speaking  of 
the  character  of  the  man ;  it  throws  light  upon  many  things 
in  his  life  which  are  otherwise  inexplicable ;  it  explains  in 
some  degree  at  least  why  there  was  so  much  of  disappoint- 
ment and  bitterness  and  failure  in  it ;  why  he  made  so  few 
warm  friends,  and  why  at  the  close  of  a  long  life  he  was 
solitary  and  alone. 

Turning  from  this  painful  subject,  we  shall  find  many  ad- 
mirable characteristics  upon  which  we  may  dwell  with  pleas- 
ure. His  nature  was  deeply  religious.  Whether  or  not  there 
is  any  truth  in  the  report  which  is  given  currency  by  Mr. 
Reed  in  his  Bench  and  Bar  that  his  parents  designed  him 
for  the  priesthood  I  know  not,  but  it  is  certain  that  he  came 
of  a  reverent  and  religious  parentage,  and  that  he  carried 
the  impress  of  those  early  influences  through  his  life  to  the 
very  end.  In  Milwaukee  he  was  for  a  long  time  a  com- 
municant and  attendant  of  one  of  the  Episcopal  churches, 
and  at  Madison  of  Grace  church.  That  his  thoughts  were 
often  directed  toward  religious  subjects  is  shown  by  the 
character  of  several  essays  or  lectures  which  he  left  among 
his  papers,  among  which  are  lectures  on  "Faith,"  and 
"Heresy,"  and  on  unfinished  lecture  on  "The  Crucifixion," 
all  of  which  will  be  referred  to  later ;  he  often,  especially  in 
his  later  years,  discussed  the  great  problems  of  life  and  im- 
mortality, and  always  with  the  strong  convictions  of  a  Chris- 
tian. Thus  Chief  Justice  Cole  in  his  reply  to  the  addresses  of 
the  Bar  before  mentioned  says  of  him,  "I  well  remember  that 
on  one  occasion  he  put  an  end  to  our  conversation  on  these 


Edward  George  Ryan  3 1 3 

intensely  interesting  questions  by  uttering  with  great  solem- 
nity of  manner,  substantially  this  language,  'As  for  myself,  I 
know  I  possess  a  soul — an  intellectual  and  moral  part  which 
is  immortal.  I  believe  that  I  shall  have  a  conscious  personal 
existence  after  death;  that  I  shall  meet  beyond  the  grave 
friends  and  those  I  loved  here,  that  I  shall  know  them  and 
they  will  know  me.  All  this  I  as  firmly  believe  as  I  believe 
that  I  shall  see  the  sunlight  tomorrow  if  I  live.'  " 

Not  only  did  he  have  this  theoretical  belief,  but  he  also 
made  practical  application  of  his  belief  in  the  Christian  re- 
ligion by  prayer.  I  know  this  not  only  from  the  fact  of  his 
regular  attendance  at  church,  but  also  from  having  found 
among  his  papers,  which  were  kindly  placed  at  my  disposal 
by  Mr.  Hugh  Ryan,  a  manuscript  prayer,  much  worn  and  in 
his  own  handwriting,  which  I  believe  to  be  original  and  evi- 
dently prepared  by  him  for  daily  use  after  he  came  to  the 
bench.  Its  beauty  and  simple  pathos  should  give  it  a  place 
in  any  liturgy.     I  cannot  forbear  quoting  it  in  full. 

"0  God  of  all  truth,  knowledge  and  judgment,  without  whom 
nothing  is  true  or  wise  or  just,  Look  down  with  mercy  upon 
Thy  servants  whom  thou  sufferest  to  sit  in  earthly  seats  of  judg- 
ment to  administer  Thy  justice  to  Thy  people.  Enlighten  their 
ignorance  and  inspire  them  with  Thy  judgments.  Grant  them 
grace  truly  and  impartially  to  administer  Thy  justice  and  to 
maintain  Thy  truth  to  the  glory  of  Thy  name.  And  of  Thy  In- 
finite mercy  so  direct  and  dispose  my  heart  that  I  may  this  day 
fulfill  all  my  duty  in  Thy  fear,  and  fall  into  no  error  of  judg- 
ment. Give  me  grace  to  hear  patiently,  to  consider  diligently, 
to  understand  rightly  and  to  decide  justly.  Grant  me  due  sense 
of  humility,  that  I  be  not  misled  by  my  wilfullness,  vanity  or 
egotism.  Of  myself  I  humbly  acknowledge  my  own  unfitness 
and  unworthiness  in  Thy  sight,  and  without  Thy  gracious  guid- 
ance I  can  do  nothing  right.  Have  mercy  upon  me  a  poor,  weak, 
frail  sinner,  groping  in  the  dark;  and  give  me  grace  so  to  judge 
others  now,  that  I  may  not  myself  be  judged  when  Thou  comest 
to  judge  the  world  with  Thy  truth.  Grant  my  prayer  I  beseech 
Thee  for  the  love  of  Thy  son,  our  Savior,  Jesus  Christ.     Amen." 


3 1  4  The  Story  of  a  Great  Court 

I  also  found  among  his  papers  a  manuscript  form  for  daily- 
family  prayers,  also  in  his  own  handwriting  and  rivalling  in 
beauty  and  dignity  the  personal  prayer  just  quoted. 

Again  Judge  Ryan  passionately  loved  justice  and  hated 
oppression  or  wrong.  It  may  perhaps  be  said  that  he  was 
frequently  unjust  and  cruel  to  bis  personal  friends  and  this 
is  true  ;  but  it  is  also  true  that  this  was  the  result  of  his  un- 
controllable temper  which  carried  away  his  judgment  and 
blinded  his  mental  vision,  and  hence  this  fact  cannot  be  con- 
sidered as  in  any  degree  impeaching  the  sincerity  of  his  love 
of  justice.  Akin  to  this  was  his  love  of  truth  and  hatred  of 
anything  like  hypocrisy  and  time  serving.  That  which  he 
believed  he  proclaimed  without  thought  of  popularity  or 
fear  of  the  result.  Thus,  although  he  was  always  a  Demo- 
crat, he  became  the  leading  counsel  for  Bashford  in  the  cele- 
brated case  of  Bashford  v.  Barstow,  in  1856,  when  it  seemed 
that  the  will  of  the  people  was  about  to  be  defeated  by  fraud, 
and  in  the  course  of  that  litigation  vindicated  the  principles 
of  honest  government,  although  the  result  was  to  place  a 
political  opponent  in  the  Governor's  chair.  The  famous 
Ryan  address  of  1862,  before  mentioned,  also  demonstrates, 
as  it  seems  to  me,  this  same  quality.  While  this  address  was 
ill-timed  and  doubtless  gave  aid  and  comfort  to  the  enemy,  it 
was  in  no  sense  a  disunion  document ;  it  denounced  the  rebel- 
lion of  the  Southern  States  as  "unnecessary,  unjustifiable, 
and  unholy,''  and  demanded  the  most  vigorous  prosecution  of 
the  war,  and  the  burden  of  it  consisted  of  an  impassioned 
appeal  for  the  maintenance  of  the  constitution  of  the  United 
States  against  certain  measures  and  acts  which  had  been 
deemed  necessary  by  the  administration  for  the  due  prosecu- 
tion of  the  war,  such  as  the  suspension  of  the  writ  of  habeas 
corpus  by  the  executive,  arbitrary  arrests,  and  other  acts  of 


Edward  George  Ryan  3 1  5 

doubtful  constitutionality.  Here  appeared  Mr.  Ryan's  great 
respect  for  established  law.  He  reverenced  the  constitution 
and  when  he  saw  it  invaded  and  disregarded,  as  he  deemed, 
he  hesitated  not  to  denounce  such  acts  with  all  the  vigor  of 
his  matchless  rhetoric,  though  he  must  have  known  that  his 
act  would  bring  upon  his  head,  as  it  in  fact  did,  a  storm  of 
obloquy ;  a  storm  which  lasted  for  years,  and  effectually 
killed  any  political  ambitions  which  he  possessed. 

Instances  might  be  multiplied  of  his  love  of  abstract  jus- 
tice, his  reverence  for  law,  and  his  hatred  of  wrong,  but 
others  have  written  of  these  qualities  far  more  effectively 
than  I  can  hope  to  do.  Judge  Jenkins,  in  the  address  be- 
fore spoken  of,  says : 

"He  possessed  none  of  the  arts  of  the  courtier;  he  would 
neither  bow  subservient  to  power,  nor  be  patient  in  the  presence 
of  wrong  and  oppression.  Like  the  oak  of  the  forest,  he  could 
break  but  not  bend.  Power  might  crush  him,  it  could  not  si- 
lence him.  So  he  was  often  the  champion  of  the  lowly  against 
the  powerful: — I  think  out  of  abhorrence  of  the  oppressor,  rather 
than  from  sympathy  for  the  oppressed.  He  hated  the  wrong 
more  than  he  loved  the  victim  of  the  wrong.  Such  a  man  could 
never  be  popular;  he  never  sought  to  be.  He  despised  the  popu- 
larity that  is  run  after.  He  challenged  the  fame  that  waits  upon 
grand  deeds,  upon  great  intellectual  and  moral  power.  Men  ad- 
mired him.  The  world  recognized  a  grand  intellect  and  mar- 
velled at  its  power.  It  apprehended  his  great  acquirements  and 
honored  him;  but  it  could  not  love  him.  It  neither  compre- 
hended the  man,  nor  allowed  for  his  infirmity.  Indeed  he  never 
sought  the  world's  appreciation.  He  was  all  sufficient  to  him- 
self. He  shut  himself  up  within  himself,  asking  neither  sym- 
pathy nor  love.  He  seemed  of  different  mould  from  other  men; 
above  the  need  of  sympathy  or  too  proud  to  claim  it." 

It  goes  without  saying  that  such  a  man  must  have  had  a 

high  i   ide  of  professional  and  judicial  ethics.     The  tributes 

of  lifelong  acquaintances  leave  us  not  in  doubt  as  to  these 

matters,  but  he  has  expressed  himself  so  eloquently  as  to  the 

•  of  the  duties  of  lawyers  and  judges  in  his  famous  ad- 


3 1 6  The  Story  of  a  Great  Court 

dress  to  the  University  Law  class  of  1873  that  I  cannot  do 
better  than  to  quote  a  few  sentences.  Of  the  lawyer  he  says  : 
"This  is  the  true  ambition  of  the  lawyer:  To  obey  God  in  the 
service  of  society;  to  fulfill  His  law  in  the  order  of  society;  to 
promote  His  order  in  the  subordination  of  society  to  its  own 
law  adopted  under  His  authority;  to  minister  His  justice  by  the 
nearest  approach  to  it  under  the  municipal  law  which  human  in- 
telligence and  conscience  can  accomplish.  To  serve  man  by  dili- 
gent study  and  true  counsel  of  the  municipal  law;  to  aid  in  solv- 
ing the  questions  and  guidiog  the  business  of  society  according 
to  law;  to  fulfill  his  allotted  part  in  protecting  society  and  its 
members  against  wrong,  in  enforcing  all  rights  and  redressing 
all  wrongs;  and  to  answer  before  God  and  man  according  to  the 
scope  of  his  office  and  duty  for  the  true  and  just  administration 
of  the  municipal  law.  There  go  to  this  ambition,  high  integrity 
of  character  and  life;  inherent  love  of  truth  and  right;  intense 
sense  of  obedience,  of  subordination  to  law,  because  it  is  law; 
deep  reverence  of  all  authority,  human  and  divine;  generous 
sympathy  with  man,  and  profound  dependence  on  God.  These 
we  can  all  command.  There  should  go  high  intelligence.  That 
we  can  not  command.  But  every  reasonable  degree  of  intelli- 
gence can  conquer  adequate  knowledge  for  meritorious  service 
in  the  profession." 

Of  the  Judge  he  says : 

"The  Bench  symbolizes  on  earth  the  throne  of  divine  justice. 
The  judge  sitting  in  judgment  on  it  is  the  representative  of 
divine  justice,  but  has  the  most  direct  subrogation  on  earth  of 
any  attribute  of  God.  In  other  places  in  life  the  light  of  intelli- 
gence, purity  of  truth,  love  of  right,  firmness  of  integrity,  single- 
ness of  purpose,  candor  of  judgment,  are  relatively  essential  to 
high  beauty  of  character.  On  the  bench  they  are  the  absolute 
condition  of  duty,  the  condition  which  only  can  redeem  judges 
from  moral  leprosy.  *  *  *  The  judge  who  palters  with  jus- 
tice, who  is  swayed  by  fear,  favor,  affection,  or  hope  of  reward, 
by  personal  influence  or  public  opinion,  prostitutes  the  attri- 
butes of  God  and  sells  the  favor  of  his  maker  as  atrociously  and 
blasphemously  as  Judas  did.  But  the  light  of  God's  eternal 
truth  and  justice  shines  on  the  head  of  the  just  judge  and  makes 
it  visibly  glorious." 

Higher  ideals  than  these  could  hardly  be  expressed  in 
human  languag-e.    That  deep  reverence  for  God  and  for  law 


Edward  George  Ryan  3 1  7 

and  order  before  spoken  of  shines  forth  from  the  quoted 
lines  with  the  clear  radiance  of  the  sun  at  noonday.  Did 
he  fail  at  times  to  reach  the  height  of  these  ideals?  Prob- 
ably so,  but  does  poor  human  nature  ever  realize  and  live 
up  to  its  ideals?  If  it  did  the  ideals  would  be  no  longer 
ideals.  It  may  be  said  with  confidence  that  whatever  Judge 
Ryan's  failings  were  it  was  never  charged  for  a  moment 
that  he  willfully  departed  from  these  high  ideals  of  profes- 
soinal  and  judicial  conduct.  His  mind  was  clean,  his 
thoughts  pure,  vice  did  not  allure,  loose  living  did  not  at- 
tract him. 

It  has  been  said  that  a  good  man  always  has  a  deep  re- 
spect for  woman.  Judged  by  this  test,  Judge  Ryan  was  a 
good  man.  His  respect  for  woman  and  womanhood  was 
deep  and  almost  reverential.  Whenever  and  wherever  he 
has  written  or  spoken  of  woman  or  womanhood  he  has  done 
so  with  a  deference  as  charming  as  it  is  appreciative  and  re- 
spectful. True  he  had  his  own  ideas  of  her  proper  sphere, 
which  were  expressed  quite  fully  in  his  lecture  entitled  "Mrs. 
Jellyby,"  which  will  be  referred  to  later.  He  had  no  patience 
with  the  "new  woman,"  even  at  the  moderate  stage  of  de- 
velopment which  she  had  reached  forty  years  ago ;  what  he 
would  have  thought  of  the  "new  woman"  of  the  20th  century 
can  be  easily  imagined.  His  idea  was  not  that  woman  was 
inferior  to  man,  but  that  she  was  intended  by  the  Creator 
for  a  different  and  really  nobler  sphere  of  action,  and  that  it 
was  a  perversion  of  the  divine  purpose  to  attempt  to  take 
her  from  that  sphere.  When  Miss  Lavinia  Goodell  moved 
for  admission  to  practice  as  a  lawyer  in  1875,  Judge  Ryan 
wrote  the  opinion  of  the  Court  denying  the  application  and 
and  said,  among  other  things : 

"There  are  many  employments  in  life  not  unfit  for  female 
character.  The  profession  of  the  law  Is  surely  not  one  of  these.- 
The  peculiar  qualities  of  womanhood,  its  gentle  graces,  its  quick 


3 1  8  The  Story  of  a  Great  Court 

sensibility,  its  tender  susceptibility,  its  purity,  its  delicacy,  its 
emotional  impulses,  its  subordination  of  hard  reason  to  sym- 
pathetic feeling  are  surely  not  qualifications  for  forensic  strife. 
Nature  has  tempered  woman  as  little  for  the  judicial  conflicts 
of  the  court  room  as  for  the  physical  conflicts  of  the  battle  field. 
Woman  is  moulded  for  gentler  and  better  things." 

This  view  is  more  fully  brought  out  in  the  Jellyby  lecture 
and  need  not  be  dwelt  upon  now. 

In  addition  to  the  admirable  qualities  already  mentioned, 
it  may  be  said  that  he  loved  truth,  as  he  loved  law  and  jus- 
tice, with  a  love  that  was  almost  worship.  Deceit  and  false- 
hood stirred  his  indignation  profoundly.  He  was  careless 
of  money ;  avarice  and  greed  were  foreign  to  him  ;  large  fees 
tempted  him  not ;  the  wealthy  client  whose  cause  seemed 
tainted  with  wrong  or  whose  conduct  displeased  him  was 
turned  from  his  door  just  as  quickly  as  the  client  who  came 
in  rags.  It  goes  without  saying  that  he  died  poor ;  he  had 
no  faculty  or  inclination  for  acquiring  this  world's  goods. 
It  is  related  of  him  that  he  once  said  in  debate : 

"I  never  so  much  esteem  my  Divine  Master,  I  never  feel  such 
a  nearness  to  the  Nazarene,  as  when  I  read  that  in  His  exalted 
and  righteous  anger  He  scourged  the  money-changers  and  drove 
them  from  the  temple." 

An  incident  which  occurred  while  he  was  on  the  bench 
well  illustrates  his  jealous  regard  for  his  own  honor,  as  well 
as  his  emotional  character.  He  received  one  morning  by 
mail  a  one  hundred  dollar  bill,  with  a  letter  requesting  a 
favorable  decision  in  a  case  about  to  be  argued.  The  letter 
came  from  a  German  who  had  come  to  Madison  to  watch 
his  case,  and  who  probably  had  no  idea  of  the  impropriety 
or  criminality  of  the  act.  Judge  Ryan  took  the  letter  and 
bill  to  Judge  Lyon  who  was  sitting  in  the  same  room,  and 
said  in  a  voice  trembling  with  emotion  and  with  tears  run- 
ning down  his  cheeks,  "What  has  there  ever  been  in  my  life 
that  would  lead  any  one  to  believe  that  I  could  be  bribed  ?" 


Edward  George  Ryan  3 1 9 

Judge  Lyon  soothed  him  with  the  assurance  that  the  would- 
be  briber  doubtless  supposed  all  judges  to  be  approachable 
with  money,  and  advised  laying  the  matter  before  the  Dis- 
trict Attorney,  which  was  done,  and  the  man  was  at  once 
prosecuted  and  fined  $ioo  for  his  crime. 

Some  further  anecdotes  which  have  been  already  printed 
may  not  be  out  place  as  throwing  light  upon  his  character. 
The  following  anecdote  was  long  current  in  Milwaukee,  and 
is  related  in  the  work  called  The  Bench  and  Bar  of  Wiscon- 
sin, prepared  under  the  direction  of  Mr.  Berryman,  the 
State  Librarian,  and  published  in  1898.  While  in  partner- 
ship with  Senator  Carpenter,  there  was  employed  a  clerk 
in  the  office  who  was  more  especially  under  Mr.  Carpenter's 
direction,  and  against  whom  Mr.  Ryan  had  taken  a  violent 
and  uncontrollable  dislike,  which  was  so  extreme  that  he 
could  not  abide  his  presence  in  the  same  room.  At  one  time 
while  Mr.  Carpenter  was  absent  attending  court  in  Beloit, 
this  clerk  came  into  Mr.  Ryan's  room  and  asked  him  if  he 
had  any  instructions  to  give  him  as  to  the  office  work. 
"Yes,  sir,  I  have,"  said  Ryan,  and,  turning  to  his  desk,  has- 
tily wrote  a  few  lines,  sealed  the  note,  handed  it  to  the  clerk 
and  directed  him  to  take  it  to  Mr.  Carpenter  as  soon  as  he 
could.  The  clerk,  impressed  with  the  importance  of  the 
message,  rushed  to  the  station,  just  succeeded  in  catching 
the  train  as  it  was  moving  out,  and  on  his  arrival  in  Beloit 
made  equal  speed  in  taking  the  note  to  Mr.  Carpenter,  who 
was  engaged  in  trying  a  case.  Tearing  it  open,  Mr.  Car- 
penter read  as  follows : 

"Matt  H.  Carpenter, 

"Dear  Sir :  I  want  you  to  keep  your  lackey  out  of  my 

office. 

"Yours  respectfully, 

"E.  G.  Ryan."    ' 


320  The  Story  of  a  Great  Court 

Tradition  frequently  affixes  a  vigorous  adjective  to  the 
word  "lackey"  in  the  note. 

General  Bryant,  in  an  article  in  the  Green  Bag,  relates 
the  following  incident : 

"He  was  once  arguing  a  case  in  the  Supreme  Court  of  the 
United  States.  Chief  Justice  Chase  presided  and  during  Ryan's 
argument  the  great  chief  justice  turned  to  an  associate  and  be- 
gan a  "whispered  conversation.  Perceiving  this  Ryan  paused 
and  waited  until  the  chief  justice  turned,  as  if  to  inquire  the 
cause  of  his  silence.  Then  Ryan  said,  with  great  dignity  but 
significant  impressiveness,  'What  I  am  saying  is  worth  hearing.' 
It  is  said  that  the  chief  justice  blushed  deeply  and  afterward 
gave  perfect  attention." 

As  an  instance  of  his  sarcasm,  it  is  related  that  on  being 
informed  that  a  legal  acquaintance  had  married  a  fortune 
and  obtained  a  fine  federal  appointment,  he  exclaimed :  "God 
bless  him !  The  lucky,  lazy  dog !  He  never  opened  his 
mouth  but  to  yawn  and  never  opened  it  but  a  sugar  plum 
fell  into  it." 

Another  anecdote  which  was  current  at  Racine  when  I 
was  a  young  practitioner  (but  for  the  truth  of  which  I  do 
not  vouch),  runs  as  follows:  When  Hon.  Experience  Esta- 
brook  of  Lake  Geneva  was  attorney  general  in  1852  or  1853, 
Mr.  Ryan  was  engaged  in  the  argument  of  a  case  in  the 
Supreme  Court  in  which  the  Attorney  General  was  opposed 
to  him,  and  in  the  course  of  his  remarks  Mr.  Ryan  referred 
to  Mr.  Estabrook  as  "this  vagabond  Attorney  General." 
The  Court  was  shocked  by  this  breach  of  courtesy  toward 
its  officer  and  the  Chief  Justice  presiding  called  Ryan  to 
order  and  informed  him  that  he  would  be  required  to  show 
cause  when  the  Court  came  in  after  the  noon  recess  why  he 
should  not  be  punished  for  contempt  of  court.  Ryan  came 
in  at  the  appointed  time  with  a  dictionary  and  showed  that 
the  word  vagabond  was  an  adjective  as  well  as  a  noun ;  that 
as  an  adjective  it  meant  simply  "strolling  or  wandering  from 


Edward  George  Rayn  321 

place  to  place,"  that  he  had  used  it  as  an  adjective  and  sim- 
ply in  this  inoffensive  sense,  and  that  it  was  strictly  true, 
because  the  Attorney  General  resided  at  Lake  Geneva  and 
only  came  to  Madison  as  duty  called,  and  thus  he  might  be 
truly  said  to  stroll  or  wander  from  place  to  place.  The 
judges  conferred  a  moment  and  decided  that  the  explanation 
did  not  explain,  and  a  fine  of  $50  and  costs  was  imposed. 
As  he  paid  the  fine  at  the  clerk's  desk,  he  said  in  a  reflective 
way,  but  loud  enough  to  be  distinctly  heard,  "I  am  com- 
pelled to  pay  this  fine  because  the  Supreme  Court  of  Wis- 
consin doesn't  know  the  difference  between  a  noun  and  an 
adjective."  Another  version  of  the  story  is  that  after  he 
paid  the  fine  he  walked  up  and  down  the  room  and  said 
sotto  voce,  "I  have  been  fined  $50  for  expressing  my  opinion 
of  the  Attorney  General  of  this  Court.  Great  Heavens ! 
What  would  I  have  been  fined  if  I  had  expressed  my  opinion 
of  the  Court  itself?" 

The  two  stories  immediately  following  were  told  to  the 
writer  by  Judge  James  G.  Jenkins  of  Milwaukee.  Soon 
after  the  publication  of  Darwin's  book  on  the  Origin  of 
Species,  when  the  doctrine  of  evolution  was  the  principal 
subject  of  discussion  everywhere,  a  man  came  into  Ryan's 
office  in  Milwaukee  to  sell  tickets  for  a  lecture  by  some  dis- 
tinguished person  on  the  new  doctrine.  Ryan  was  busy, 
and  not  inclined  to  pay  any  attention,  but  the  man  became 
insistent,  explaining  that  the  lecture  must  be  worth  hearing 
on  account  of  the  great  importance  of  the  subject ;  finally 
Ryan  became  aroused,  and,  turning  to  the  ticket  peddler, 
said  with  characteristic  vehemence :  "Sir,  you  may  be  de- 
scended from  a  monkey,  but  I  know  that  God  Almighty 
made  me." 

During  the  early  '60s  an  eccentric  clergyman  named 
James  Cooke  Richmond  was  rector  of  the  Episcopal  church 
21 


322  The  Story  of  a  Great  Court 

in  Milwaukee  which  Ryan  attended.  The  reverend  gentle- 
man was  continually  in  difficulty  with  some  part  of  his  con- 
gregation, and  a  meeting  was  held  at  one  time  in  a  law  office 
in  Milwaukee  between  the  Rector  and  the  leaders  of  the 
opposing  faction  with  the  idea  of  settling  if  possible  some 
more  than  usually  troublesome  difficulty.  The  insurgents 
were  represented  by  counsel  at  the  meeting  and  Ryan  rep- 
resented the  rector.  The  lawyer  who  represented  the  in- 
surgents made  a  statement  in  which  there  were  included 
some  very  uncomplimentary  remarks  about  Mr.  Richmond, 
which  so  aroused  Ryan's  ire  that  he  jumped  from  his  seat, 

spat  in  the  lawyer's  face  and  exclaimed,  "I  will  be  

if  I  will  calmly  sit  here  and  hear  my  pastor  in- 


sulted." There  was  a  clinch  at  once,  but  the  combatants 
were  separated  and  the  incident  was  closed  for  the  time, 
but  probably  never  forgiven. 

Dr.  Charles  H.  Vilas,  whose  boyhood  and  early  manhood 
were  spent  in  Madison,  related  to  me  this  story:  Strolling 
into  the  old  Supreme  Court  room  one  day  while  arguments 
were  going  on,  he  found  Mr.  Ryan  arguing  a  case  in  his 
usual  earnest  and  eloquent  manner ;  as  he  paused  for  a 
moment  Chief  Justice  Dixon  said  to  him,  "But  Mr.  Ryan, 
did  not  your  client  have  a  complete  and  adequate  remedy 
by  legal  proceedings?"  Mr.  Ryan,  advancing  toward  the 
bench,  and  shaking  his  finger  said  impressively,  "I  tell  you, 
Mr.  Chief  Justice  Dixon,  there  are  wrongs  for  which  there 
is  no  adequate  remedy,  except  the  toe  of  the  boot  properly 
applied." 

A  witty  Milwaukee  friend  once  said  to  Ryan  (referring 
to  his  utter  inability  to  control  his  temper),  "Ryan  you  ought 
to  be  incorporated  and  have  a  board  of  directors." 

An  anecdote,  showing  his  unconsciousness  of  the  splendor 
of  his  own  diction,  may  not  be  out  of  place.    In  the  January 


Edward  George  Ryan  323 

term,  1875,  the  divorce  case  of  Campbell  v.  Campbell  came 
before  the  Court.  It  involved  simply  the  question  of  ali- 
mony, but  in  the  course  of  the  opinion  which  Judge  Ryan 
wrote  there  occurs  a  tribute  to  marriage  as  a  divine  insti- 
tution, the  majesty  and  beauty  of  which  can  only  be  appre- 
ciated by  reading  it.  Judge  Dixon,  who  but  a  few  months 
before  had  been  chief  justice,  was  attorney  for  the  prevail- 
ing party  in  the  case  and  came  to  the  consultation  room 
after  the  decision  was  announced,  and  desired  to  read  the 
opinion.  Judge  Ryan  said,  "Let  me  read  it  to  you ;  you 
will  find  it  hard  to  read  my  writing."  At  this  point  Judge 
Lyon,  who  was  present,  said  to  Judge  Dixon,  "And  when 
he  reads  it,  Judge,  remember  what  he  said  to  us  a  few 
months  ago  about  the  rhetoric  in  the  opinions  of  this  Court." 
It  seems  that  shortly  before  Judge  Ryan's  elevation  to  the 
bench  he  had  expostulated  with  the  judges  on  the  great 
amount  of  rhetoric  which  they  were  putting  in  their  opin- 
ions, and  it  was  to  this  that  reference  was  made.  Judge 
Ryan  read  the  opinion  to  Judge  Dixon,  and  then  came  to 
Judge  Lyon's  desk  as  though  troubled,  and  said,  "Do  you 
really  think,  Judge,  that  that  opinion  is  rhetorical?"  To 
this  Judge  Lyon  replied  that  he  thought  it  was  slightly 
rhetorical.  The  answer  seemed  to  surprise  Judge  Ryan,  and 
he  said  no  more,  but  a  mere  reading  of  the  opinion  will  show 
to  any  one  that  finer  rhetoric  is  very  rare. 

That  Judge  Ryan  was  a  profound  scholar,  there  can  be 
no  question.  As  well  might  one  doubt  the  resistless  power 
of  Niagara  while  standing  on  its  brink  as  to  doubt  the  learn- 
ing and  scholarship  of  Ryan  while  reading  one  of  the  mas- 
terpieces of  his  massive  brain.  Whether  the  subject  be  re- 
ligious, philosophical  or  purely  legal,  the  sweep  of  his 
eloquence  is  overwhelming.  His  English  is  pure  and  un- 
dented;  every  word  expresses  the  exact  shade  of  meaning 


324  The  Story  of  a  Great  Court 

desired.  The  sentences  are  short  and  intensely  virile.  He 
well  understood  the  telling  force  of  the  short  Anglo-Saxon 
word,  the  brief  explosive  sentence,  the  startling  antithesis, 
the  striking  epigram,  and  he  used  them  all  with  marvellous 
effect,  but  he  also  was  master  of  metaphor  and  simile,  of 
the  stately  period  and  the  classic  allusion,  and  these  also  he 
called  to  his  aid  at  will.  They  all  flowed  in  a  limpid  and 
copious  stream,  apparently  without  stint,  and  without  effort, 
as  though  language  was  his  plaything  and  eloquence  his 
birthright.  All  knowledge  seemed  at  his  command,  satire, 
philosophy  and  logic  his  willing  handmaids.  He  trans- 
formed and  illumined  the  most  commonplace  subject.  Wit 
and  humor  he  had  in  good  degree,  but  it  was  apt  to  be 
trenchant  and  sarcastic,  rather  than  rollicking.  It  was  more 
often  than  otherwise  used  to  drive  home  a  telling  shaft  of 
ridicule  or  tip  a  barb  of  satire.  His  power  over  invective 
was  absolute,  and  he  was  not  slow  to  use  it ;  pitiless  and 
scathing,  it  left  its  unhappy  victim  to  writhe  in  helpless 
agony.  His  conclusions  were  always  radical  and  frequently 
extreme.  This  was  the  natural  result  not  only  of  his  dis- 
position and  temperament,  but  largely  also  of  the  brilliancy 
of  his  literary  style.  He  who  makes  frequent  use  of  anti- 
thesis and  epigram  will  surely  make  literature  which  will 
chain  the  attention  and  thrill  the  heart,  but  he  will  almost 
as  surely  be  guilty  of  exaggeration  and  inaccuracy.  The 
temptation  is  too  great  to  be  resisted ;  truth  will  be  sacri- 
ficed to  style ;  antithesis  is  ineffective  if  it  be  not  extreme, 
epigram  falls  flat  if  it  be  not  radical.  By  their  striking  and 
brilliant  effects  they  often  take  captive  the  judgment  for  the 
moment  and  lead  it  to  a  conclusion  which  calm  reflection 
will  afterwards  repudiate.  But  if  we  admit,  as  I  think  we 
must,  that  this  was  the  case  with  Judge  Ryan,  we  must  still 
admit  that  his  writings,  whether  legal,  philosophical  or  re- 


Edward  George  Ryan  325 

ligious,  show  a  marvellous  power  of  reasoning-,  a  depth  of 
learning  rarely  equalled,  an  ease  and  grace  of  composition 
which  carries  the  reader  spellbound  upon  its  current,  and 
that  there  runs  through  them  all  the  great  strong  note  of 
genius ;  they  claim  our  admiration  and  attention  with  an 
imperious  and  resistless  demand  which  can  come  only  from 
merit. 

The  question  as  to  whence  came  these  great  and  com- 
manding qualities  will  naturally  be  asked.  That  he  was  en- 
dowed by  nature  with  a  massive  intellect  cannot  be  doubted, 
but  that  he  developed  and  added  to  his  great  natural  abili- 
ties by  lifelong  study  can  as  little  be  doubted. 

As  appears  from  the  autobiographical  sketch  before 
quoted,  he  left  college  with  his  degree  at  the  early  age  of  17. 
This  fact  does  not,  I  think,  necessarily  indicate  great  pre- 
cocity. I  have  no  knowledge  of  the  standing  of  the  institu- 
tion. I  do  not  remember  ever  to  have  heard  of  it  in  any 
other  connection,  except  that  Francis  Mahoney  ("Father 
Prout"),  author  of  "Shandon  Bells,"  was  one  of  its  alumni. 
Presumably  it  was  a  small  institution,  giving  that  predom- 
inance to  the  classics  which  was  universal  at  the  time.  It 
can  hardly  be  supposed  that  it  furnished  anything  approach- 
ing what  we  now  call  a  liberal  education.  But  whatever  its 
merits  or  defects,  here  it  certainly  was  that  the  beginnings 
of  the  learning  of  the  great  Chief  Justice  were  acquired,  and 
here  it  was  that  the  foundations  of  the  splendid  literary 
edifice  which  he  left  behind  him  were  doubtless  deeply  laid. 
But  it  is  evident  that  his  education  was  only  begun  in 
college ;  much  as  he  may  have  there  learned,  it  was  but  the 
prelude  to  a  lifelong  course  of  study.  Books  were  his  de- 
light, and  he  read  them  not  to  pass  the  hours  away,  but  to 
lay  up  the  contents  in  the  treasurehouse  of  his  brain,  where 
they  were  always  at  his  command.     Contact  with  men  and 


326  The  Story  of  a  Great  Court 

things,  the  fierce  attrition  of  mind  against  mind  in  the  pro- 
fession broadened  and  developed  him.  His  conversation 
was  a  perpetual  delight,  and  he  delighted  in  it.  Dictionaries 
surrounded  him,  and  were  in  constant  use ;  he  was  content 
with  no  written  sentence  until  it  was  perfect.  Slovenly 
writing  was  an  abomination  to  him ;  the  proper  word  was 
the  word  to  be  used,  and  there  was  but  one  proper  word. 

To  quote  again  from  Senator  Vilas : 

"So  in  all  his  labor  of  writing,  dictionaries  were  his  com- 
panions and  friends.  He  trusted  to  no  one  of  them,  but  sur- 
rounded by  many  he  gathered  from  the  best  linguists  the  perfect 
hue  of  intelligence  and  beauty  that  belonged  to  every  word  he 
used,  and  set  it  then  in  happy  harmony  with  its  fellows  in  the 
finished  picture  of  thought  which  his  every  period  became.  Such 
discipline  had  its  reward.  His  style  is  his  own,  strong,  clear 
and  beautiful;  not  wholly  without  fault,  but  as  worthy  of  study 
a3  Addison's;  not  always  in  his  opinions  perfectly  judicial,  but 
turning  from  the  path  only  to  bring  in  gems  of  beauty  by  the 
way.  To  be  able  to  write  as  Edward  G.  Ryan  has  written  is  a 
crown  of  glory  in  letters,  a  sufficient  title  to  literary  renown." 

His  knowledge  of  the  law  was  profound.  When  he  spoke 
or  wrote  on  legal  subjects,  he  spoke  or  wrote  as  one  having 
authority.  Mindful  of  precedents,  he  did  not  follow  them 
with  a  blind  and  slavish  reverence  because  they  came  from 
the  pen  of  a  Coke  or  a  Mansfield,  but  because  they  were  the 
voice  of  the  law,  which  was  to  him  as  the  voice  of  God. 

While  Judge  Ryan's  fame  must  always  rest  primarily 
upon  his  achievements  as  a  lawyer  and  a  judge,  it  must  not 
be  forgotten  that  he  left  some  efforts  in  the  line  of  general 
literature  which  by  reason  of  beauty  of  style  and  strength 
of  thought  should  of  themselves  serve  to  rescue  his  name 
from  oblivion.  It  is  true  that  these  remains  are  not  many 
in  number,  and  most  of  them  exist  only  in  manuscript,  but 
they  are  well  worth  our  attention.  His  first  serious  literary 
efforts  seems  to  have  been  poetical  in  their  nature.  There 
is  among  his  papers  a  large  blank  book,  handsomely  bound 


Edward  George  Ryan  327 

in  leather  and  marked  on  the  outside,  "E.  G.  R.  1835."  ^ 
seems  to  have  been  intended  to  contain  the  poetical  works 
which  he  deemed  worthy  of  preservation.  It  contains,  how- 
ever, but  five  short  efforts,  each  occupying  about  a  page,  and 
the  rest  of  the  book  is  blank.  The  first  of  these  bears  the 
heading,  "Written  at  College,  February,  1827,"  and  is  in 
the  nature  of  a  complaint  that  he  cannot  follow  his  own  will 
as  to  his  vocation,  but  must  submit  to  the  dictation  of  his 
parents  or  guardians. 

The  second  consists  of  a  number  of  verses  written  on  the 
ship  Atlantic  in  a  storm  in  January,  183 1.    They  are  sombre 
in  their  nature,  and  evidently  written  in  contemplation  of 
possible  shipwreck.    One  verse  may,  perhaps,  be  quoted : 
"Then  Welcome  death,  if  nothing  worse 

Than  from  existence  thus  to  sever 

I'd  harter  not  man's  earliest  curse 

For  all  life  gives,  and  life  forever; 

Thee — fortune's  sickening  child  may  shun 

Thee — heroes  brave — to  meet  in  sorrow 

I  know  no  hope  beyond  this  one, 

I  am  today — and  not  tomorrow." 

The  other  verses  are  in  similar  vein  and  they  seem  to  in- 
dicate an  agnostic  condition  of  the  mind.  Another  is  enti- 
tled "Lines  written  in  a  young  lady's  album  at  her  repeated 
request,  March,  1831."  These  are  also  deeply  tinged  with 
melancholy,  as  the  following  verse  will  show : 
"You  spoke — the  soft  tone  of  those  flattering  words 

O'er  this  desolate  heart  is  yet  stealing, 

You  looked — but  you  saw  not  its  festering  chords 

As  they  thrilled  to  a  long  blighted  feeling. 

For  as  the  fond  hope  of  youth,  that  from  love  caught  its  tone 

And  still,  still  promised  hope  for  the  morrow. 

But  ere  one  short  month  had  yet  made  her  my  own, 

Died — and  left  me  alone  to  my  sorrow." 

He  was  not  yet  twenty-one  years  of  age  when  he  wrote 
these  lines  ;  whether  there  had  been  any  foundation  in  his  life 


328  The  Story  of  a  Great  Court 

for  the  intimations  of  wrecked  love  which  they  contain,  or 
whether  they  are  simply  an  excursion  into  that  luxury  of 
imaginary  woe  into  which  the  poetical  mind  so  frequently 
turns  without  apparent  cause,  I  do  not  know.  The  other 
verses  are  entitled,  "The  Exiles,  a  duet,"  183 1,  and  "Occa- 
sional Lines,"  May,  183 1 ;  both  are  serious  in  their  nature 
and  in  much  the  same  vein  as  those  quoted.  Here  his 
poetical  efforts  end,  if  we  except  a  parody  on  Moore's,  "Oft 
in  the  Stilly  Night,"  which  is  preserved  among  his  papers 
undated  and  entitled,  "Mr.  Ryan's  Song."  The  first  verse 
runs  as  follows : 

"Oft  in  the  stilly  night 

Ere  slumber's  chain  hath  bound  me, 

Fond  memory  brings  the  light 

Of  other  days  around  me; 

The  toasts,  the  lays 

Of  drinking  days, 

The  bumpers  gay  then  swallowed, 

The  nights  we  spent  in  devilment, 

The  aching  heads  that  followed. 

Thus  in  the  stilly  night, 

When  my  poor  throat  is  roasted, 

Fond  memory  brings  the  light 

Of  many  a  health  I've  toasted." 

It  would  be  a  fair  guess  from  this  effusion  that  he  did  not 
allow  the  "festering  chords"  of  his  heart  to  absorb  his  en- 
tire attention.  Blackstone  abandoned  poetry  for  the  law. 
Ryan  did  the  same:  I  do  not  think  there  is  any  just  ground 
to  regret  the  decision  in  either  case. 

Passing  to  his  manuscript  essays  or  lectures  before  spoken 
of,  doubtless  the  most  finished  of  them  is  the  one  entitled, 
"Mrs.  Jellyby,"  which  was  delivered  as  a  lecture  a  number 
of  times  to  appreciative  audiences.  It  was  evidently  written 
shortly  after  the  appearance  of  Dickens'  novel  "Bleak 
House."  In  this  lecture  Mrs.  Jellyby  is  taken  as  the  type 
of  the  strong-minded  or  new  woman,  who  desires  to  share 


Edward  George  Ryan  329 

the  ballot  with  man.  After  paying  a  deserved  compliment 
to  the  amiable  personal  character  of  Mrs.  Jellyby,  and  sug- 
gesting that  her  desire  to  share  with  man  his  public  duties 
should  be  examined  without  prejudice,  he  says  that  con- 
servatism meets  her  with  the  statement  that  her  position  in 
modern  society  is  the  best  possible  position  for  her,  and 
could  not  be  improved.  He  then  pays  his  respects  to  mere 
conservatism  in  the  following  inimitable  manner : 

"Pure  conservatism  is  always  wrong,  civilization  is  never 
fixed.  No  Joshua  has  power  to  stay  the  course  of  the  human 
mind.  Change  is  the  necessity  of  human  history,  progress  the 
duty  of  the  human  race.  Pure  conservatism  has  no  place  in 
the  annals  of  mankind.  It  concedes  the  past  but  denies  the 
future.  It  worships  the  actual  but  anathematizes  the  possible. 
Its  creed  is  the  present,  because  it  is  the  present.  It  holds  with 
Pope  that  'whatever  is  is  right.'  It  is  a  bigot  of  the  present 
without  sympathy  with  the  past,  or  prophecy  of  the  future. 
Content  where  it  finds  itself,  pure  conservatism  sits  down  by 
the  wayside  while  the  march  of  civilization  passes  by  and  presses 
on  to  the  promised  land  of  the  future,  guided  on  its  dark  way  by 
faith  in  the  destiny  of  man  as  by  a  pillar  of  fire.  Civilization 
never  pauses,  and  the  progress  of  society  is  the  progress  of  both 
sexes.  The  amelioration  of  the  condition  of  woman  must  keep 
pace  through  all  time  with  the  amelioration  of  society.  The 
civilization  of  both  sexes  is  inseparable.  God  hath  joined  them 
together,  and  man  hath  no  power  to  put  them  asunder.  Con- 
servatism would  have  given  the  same  answer  to  woman  In  any 
age  of  the  world." 

The  writer  then  rapidly  sketches  the  great  advance  in  the 
position  of  woman  from  patriarchal  times  to  the  present 
coincident  with  the  advance  of  the  position  of  man,  and  con- 
cedes that  Mrs.  Jellyby  is  right  in  her  insistence  that  there 
must  and  will  be  further  advance  in  woman's  position,  but 
suggests  that  mere  change  may  not  be  progress,  but  may  be 
simply  retrogression.  Granting  that  there  have  been  hard- 
ships in  woman's  position,  especially  as  to  property  rights, 
he  proceeds  to  argue  that  in  God's  economy  men  and  women 


330  The  Story  of  a  Great  Court 

were  created  to  perform  different,  not  identical  duties,  in 
human  life  and  society.  After  noting  the  evident  differences 
in  the  mental  and  physical  qualities  of  man  and  woman,  he 
says,  "These  distinctions  are  not  the  inferiority  of  one  sex 
to  the  other.  What  man  gains  in  general  force  is  compen- 
sated to  woman  by  the  purer  beauty  of  her  mental,  moral 
and  physical  organization.  It  is  no  more  woman  and  her 
master  than  it  is  man  and  his  mistress.  The  differences  be- 
tween the  sexes  are  not  the  mere  favoritism  of  nature  to 
either  sex,  they  are  her  exquisite  adaptations  of  the  agent  to 
the  function." 

The  writer  then  paints  in  glowing  language  the  functions 
and  position  of  woman  as  the  mistress  of  the  home,  the  first 
priestess  and  teacher  of  the  human  race,  and  shows  that  the 
influence  so  wielded  by  her  is  greater  than  governments  or 
philosophies,  and  asserts  that  every  position  assumed  by 
woman  which  detaches  her  from  the  home  or  lessens  her 
adaptation  for  the  performance  of  the  peculiar  duties  of  the 
home  is  a  sin  against  nature. 

This  is  the  central  idea  of  the  whole  essay,  namely,  that 
the  natural  endowments  and  duties  of  man  and  woman  are 
essentially  different,  but  at  the  same  time  co-ordinate  and 
not  inferior  the  one  to  the  other ;  that  God  has  so  designed 
the  two  sexes,  and  that  the  attempt  by  one  sex  to  invade  the 
province  of  the  other  is  a  perversion  of  the  divine  purpose, 
and  that  hence  the  attempt  by  woman  to  perform  govern- 
mental duties  which  necessitates  her  practical  abandonment 
of  her  character  as  mistress  of  the  home  and  the  guardian 
of  the  cradles  of  the  race  is  not  progress  but  error.  This 
argument  may  perhaps  have  been  as  strongly  put  by  others, 
but  I  have  never  seen  it. 

Another  essay,  entitled  "Faith,"  is  an  eloquent  plea  for 
faith  both  in  our  fellowmen  and  in  God,  taking  for  his  text 


Edward  George  Ryan  331 

the  words  of  the  Psalmist,  "The  fool  hath  said  in  his  heart, 
'There  is  no  God.'  "  The  following  excerpt  may  be  said  to 
be  the  keynote : 

"Faith  is  a  fruitful  mother — Hope  and  Charity  her  twin  first- 
born. 'The  greatest  of  these  is  charity.'  The  greatest,  not  the 
first;  greatest  in  degree,  not  first  in  order.  Without  faith  there 
is  no  charity.  Faith  comes  before  charity;  charity  follows  after 
faith.  Man  must  believe  before  he  can  love;  he  loves  only  be- 
cause he  believes.  Faith,  hope  and  charity  all  operate  externally, 
but  faith  must  go  before  to  show  the  way,  and  hold  the  light. 
The  Apostle  speaks  of  faith  without  charity,  but  not  of  charity 
without  faith.  There  may  be  faith  without  hope  or  charity,  but 
there  is  neither  hope  nor  charity  without  faith,  unless  we  believe 
there  is  nothing  to  hope,  nothing  to  love." 

The  essay  develops  into  an  argument  in  favor  of  the  idea 
that  the  Episcopal  Church  of  this  country  is  a  true  branch 
of  the  Apostolic  and  Universal  Church  into  which  should  in 
time  be  gathered  the  great  body  of  the  American  people. 

The  essay  entitled  "Heresy,"  opens  with  the   following 

tribute  to  Christianity : 

"It  is  often  said  that  Christianity  is  the  great  element  of  mod- 
ern civilization.  It  is  more;  it  is  civilization  itself.  It  is  the 
essential  distinction  between  the  ancient  and  the  modern  order. 
It  found  a  sensual  civilization  and  replaced  it  by  a  spiritual.  If 
our  civilization  is  imperfect,  it  is  because  our  Christianity  is 
imperfect.  Pure  Christianity  would  be  pure  civilization.  It 
gave  to  man  his  great  charter  of  the  freedom  and  immortality 
of  the  soul.  It  gave  him  a  dignity  and  a  career  far  above  his 
mere  animal  being.  It  redeemed  him  from  being,  at  his  best,  a 
polished  brute.  It  revealed  to  him  his  soul,  and  his  destiny,  and 
inspired  his  life  by  the  knowledge  of  Eternity  and  the  sense  of 
immortality.  It  revealed  a  new  order  here  and  hereafter.  As  a 
new  civilization  its  effect  has  not  been  upon  the  Christian  alone. 
*  *  *  It  is  abroad  in  the  world  to  humanize  all  races  and 
creeds.  Christianity  has  its  temporal  as  well  as  its  eternal  uses. 
It  not  only  drew  the  veil  from  before  eternal  truth;  it  also  re- 
vealed to  man  his  own  nature  and  relations  in  life,  and  founded 
the  highest  temporal  philosophy.  Philosophy  has  sometimes 
mistaken  it  for  an  enemy  and  wrestled  with  it.  But  whatever  in 
philosophy  found  a  real  antagonist  in  Christianity  has  died  the 


332  The  Story  of  a  Great  Court 

death  of  error.  True  philosophy  finds  its  surest  ally  in  Chris- 
tainity.  True  philosophy  finds  its  surest  foundation  in  revela- 
tion. Religious  disbelief  has  no  place  in  modern  philosophy. 
Skepticism,  not  faith,  is  supersitition  now.  Christianity  gave  a 
soul  to  Philosophy  that  had  no  soul  before." 

This  essay  is  an  earnest  plea  for  freedom  of  the  individual 
soul  in  matters  of  faith  and  a  protest  against  any  attempt  to 
fetter  the  operations  of  the  mind.  A  few  sentences  will 
show  its  drift. 

"Human  enactments  cannot  control  the  operations  of  the  mind. 
The  soul  is  not  the  subject  of  legislation;  opinion  cannot  be  im- 
posed by  law.  The  law  can  operate  on  the  external  manifesta- 
tions of  the  thoughts,  passions  and  feelings,  but  it  cannot  oper- 
ate on  the  thoughts,  passions  and  feelings  themselves.  Punish- 
ment of  thought  may  make  cowards  and  apostates;  it  cannot 
make  converts.  Punishment  affects  us  outwardly;  reason,  feel- 
ing and  passion  control  us  inwardly.  The  law  may  torture,  de- 
face or  kill  the  body,  it  cannot  imprison  the  mind.  The  soul  is 
an  outlaw.  The  spirit  of  man  is  inviolate.  His  mind  is  subject 
to  no  human  authority.  *  *  *  For  nineteen  centuries  it  has 
been,  and  while  time  lasts  it  will  be  the  most  solemn  right  and 
duty  of  every  intelligent  man  to  study  for  himself  after  his  abil- 
ity the  life  and  teachings  of  Christ,  to  adopt  or  reject  up  on  his 
own  conscience  the  faith  of  Christ;  and  adopting  it  to  accom- 
plish for  himself,  with  the  aid  of  all  light  cast  upon  it  by  the 
efforts  of  others,  but  in  submission  to  Christ's  word  only,  a  com- 
prehension of  Christ's  religion,  and  to  determine  for  himself 
within  and  for  his  own  conscience,  how  far  historical  Christian- 
ity has  obeyed  or  rebelled  against  the  very  law  of  Christ  him- 
self." 

The  last  of  the  essays  upon  religious  subjects  is  entitled, 
"The  Crucifixion,"  and  is  merely  an  unfinished  fragment. 
It  presents  the  crucifixion  as  the  central  fact  of  all  human 
history.    Let  me  quote  a  few  characteristic  sentences : 

"Thus  centrally  and  momentously  in  history  stands  the  dread 
mystery  of  the  crucifixion;  the  sacrifice  of  the  incarnate  Son  of 
God  to  redeem  man  from  sin  and  death.  The  imagination  stands 
appalled  before  the  cross.  The  soul  pales,  and  the  heart  quivers 
to  think  of  it.  And  yet  we  cannot  choose  but  contemplate  it. 
"We  cannot  study  the  things  of  time  or  eternity  without  it.     Turn 


Edward  George  Ryan  333 

whither  we  may  we  meet  the  awful  fact,  and  there  is  dread 
fascination  in  it.  We  cannot  escape  it.  We  all  have  a  portion 
in  it.  Not  Simon  of  Cyrene  alone  bore  the  cross  of  our  Lord 
after  him.  Planted  by  God  as  the  monument  of  our  redemption, 
we  look  upon  the  cross  with  awe;  but  with  reverence  which  is 
inseparable  from  awe  we  look  into  the  gospel  of  the  cross  to 
study  the  crucifixion." 

Enough  has  perhaps  been  said  of  the  essays,  although 
they  present  an  inviting  field  for  further  consideration.  On 
every  page  they  glow  with  wisdom,  wit  and  eloquence ;  but 
the  preparation  of  essays  and  lectures  did  not  form  the  busi- 
ness of  Judge  Ryan's  life ;  he  was  a  lawyer  first,  and  to  his 
chosen  profession  he  gave  the  best  efforts  of  his  genius. 
The  essays  were  but  the  diversions  of  his  all-embracing  in- 
tellect. 

His  address  to  the  graduating  law  class  of  1873  has  al- 
ready been  mentioned.  It  is  a  legal  and  literary  classic. 
There  have  been  many  such  addresses  made  by  distinguished 
men,  but  I  have  yet  to  read  one  which  so  completely  fills  the 
ideal  as  this  one.  It  takes  a  lofty  view  of  the  law,  and  of 
the  legal  profession.  It  opens  with  the  sentence,  "Law  in  its 
highest  sense  is  the  will  of  God !"  This  is  the  keynote,  and 
from  this  he  deduces  the  proposition  that  lawyers  and  judges 
who  perform  their  duty  faithfully  are  in  a  true  sense  the 
ministers  of  God's  justice. 

"There  it  stands,  the  profession  of  the  law;  subrogated  on 
earth  for  the  angels  who  administer  God's  law  in  heaven;  there 
it  stands,  charged  with  the  peaceful  protection  of  every  public 
rigbt  of  the  state,  of  every  civil  and  religious  right  of  the  peo- 
ple of  the  state;  charged  with  the  security  and  order  of  society. 
In  peace  tbe  life,  liberty  and  property  of  the  country,  its  personal 
freedom  and  its  political  symmetry  are  in  its  ultimate  keeping." 

I  think  this  address  may  well  be  called  Judge  Ryan's  lit- 
erary masterpiece.  Its  loftiness  of  thought  is  only  equaled 
by  the  magnificience  of  its  rhetoric.  It  abounds  in  brilliant 
epigram  ;  satire  sparkles  on  its  pages  like  priceless  jewels 


334  The  Story  of  a  Great  Court 

in  a  kingly  crown.    Witness  his  characterization  of  the  pet- 
tifogger, a  part  of  which  I  quote : 

"Behold  the  pettifogger,  the  blackleg  of  the  law.  He  is  as 
his  name  imports,  a  stirrer  up  of  small  litigation,  a  wetnurse  of 
trifling  grievances  and  quarrels.  He  sometimes  emerges  from 
professional  obscurity,  and  is  charged  with  business  which  is 
disreputable  only  through  his  own  tortuous  devices.  For  the 
vermin  cannot  forego  his  instincts  even  among  his  betters. 
*  *  *  Indeed  he  is  the  troglodyte  of  the  law.  He  has  great 
cunning,  he  mistakes  it  for  intelligence.  *  *  *  He  knows  all 
things.  Nothing  is  new  to  him.  Nothing  surprises  him.  Noth- 
ing puzzles  him.  But  it  is  in  the  law  that  his  omniscience  shows 
best.  His  talk  is  of  law  incessantly.  He  has  a  chronic  flux  of 
law  among  his  followers.  He  prates  law  mercilessly  to  every- 
one except  lawyers.  He  discourses  of  his  practice  and  his  suc- 
cess to  the  janitor  of  his  office,  and  the  charwoman  who  washes 
his  windows.  He  revels  in  demonstrative  absurdity,  and  boasts 
of  all  he  never  did.  He  is  the  guide,  philosopher  and  friend  of 
vicious  ignorance.  He  is  the  oracle  of  dullness.  *  *  *  There 
is  a  variety  of  the  animal  known  by  the  classic  name  of  shyster. 
He  has  forced  the  word  into  at  least  one  dictionary,  and  I  may 
use  it  without  offense.  This  is  a  still  lower  specimen;  the  petti- 
fogger pettifogged  upon;  a  troglodyte  who  penetrates  still  deepen 
darkness.  *  *  *  He  thinks  all  lawyers  are  as  he,  but  not  so 
smart.  He  believes  in  the  integrity  of  no  man,  in  the  virtue  of 
no  woman.  He  loves  vice  better  than  virtue.  He  enjoys  dark- 
ness rather  than  light.  His  habits  of  life  lead  him  to  the  back 
lanes  and  dark  ways  of  the  world.  He  is  the  counsel  of  guilt. 
He  is  the  attorney  general  of  crime." 

No  young  lawyer  should  consider  himself  ready  to  prac- 
tice until  he  has  read  this  address.  No  law  library  should 
be  considered  complete  which  does  not  contain  it.  In  these 
days  of  commercialism  in  the  law  it  would  be  well  if  its  lofty 
sentiments  could  be  printed  in  letters  of  gold  upon  the  door- 
posts of  every  law  school  in  the  land. 

As  has  been  before  said,  Mr.  Ryan  was  a  delegate  from 
Racine  to  the  first  constitutional  convention,  which  assem- 
bled in  Madison  in  1846.  This  may  be  said  to  have  been  his 
introduction  to  the  people  of  the  young  state.     Few  knew 


Edward  George  Ryan  335 

him  or  appreciated  his  abilities  when  the  convention  opened, 
but  none  of  his  colleagues  doubted  his  great  powers  as  a 
debater  and  a  lawyer  when  it  closed.  He  was  chairman  of 
the  Committee  on  Banking,  and  took  strong  ground  against 
banks  of  issue,  as  well  as  against  the  granting  of  banking 
powers  to  corporations ;  he  also  strongly  opposed  an  elective 
judiciary  on  the  ground  that  the  terms  of  office  of  judges 
should  be  permanent.  The  constitution  proposed  by  the 
convention  was  rejected  by  the  people  largely  on  account  of 
its  restrictions  upon  banks.  He  was  a  delegate  to  the  Demo- 
cratic National  Convention  held  in  Baltimore  in  1848,  and 
removed  to  Milwaukee  in  December  of  that  year.  Here  he 
soon  attained  that  prominence  as  a  lawyer  which  his  abili- 
ties deserved,  and  his  services  were  sought  after  in  many  im- 
portant causes.  Among  these  were  a  number  of  notable 
criminal  cases,  of  which  the  Radcliffe  murder  case  of  1852 
was  perhaps  the  most  celebrated  one.  In  this  case  he  ap- 
peared for  the  prosecution  with  Mr.  A.  R.  R.  Butler.  Upon 
the  defense  there  appeared  Jonathan  E.  Arnold  and  Abram 
D.  Smith.  It  was  a  veritable  battle  of  the  giants,  for  the 
four  men  named  were  all  in  the  very  first  rank  of  the  Wis- 
consin bar.  The  trial  lasted  for  more  than  two  weeks,  and 
attracted  great  crowds,  so  much  so  that  when  the  evidence 
had  been  taken  the  court  adjourned  to  a  large  public  hall 
in  order  to  accommodate  the  desire  of  the  people  to  hear 
the  great  forensic  duel.  It  was  perhaps  the  greatest  op- 
portunity that  Ryan  had  then  had  to  demonstrate  his  power, 
and  he  did  not  fail  to  take  advantage  of  it.  A  few  sentences 
from  his  address  to  the  jury  will  serve  to  give  an  idea  of  its 

lofty  tone : 

"Life  is  the  gift  of  God,  yet  one  which  any  however  weak  may 
take  away,  but  which  not  the  united  power  of  all  men  In  all 
countries  and  of  all  times  can  restore.  *  *  *  It  is  not  that 
we  crave  for  the  defendant's  blood  that  we  stand  here.     We  pity 


336  The  Story  of  a  Great  Court 

him.  God  knows  that  we  pity  him,  and  those  that  are  connected 
with  him.  But  we  stand  here  for  the  blood  of  the  living.  It  is 
not  for  the  blood  of  Ross,  but  for  the  blood  of  every  one  in  this 
hall  and  in  this  community;  it  is  for  the  blood  of  those  yet  un- 
born, and  of  all  who  are  to  live  after  us;  it  is  that  murder  may 
cease,  that  men  may  reflect,  pause,  turn  cowards  before  they 
strike  down  their  fellowmen;  it  is  because  the  law  of  God  and 
the  law  of  man,  and  the  safety  and  existence  of  society  demand 
it,  that  we  stand  here  and  urge  upon  you  the  conviction  of  this 
defendant." 

Notwithstanding  a  very  strong  array  of  circumstantial 
evidence  (for  none  had  seen  the  act),  the  defendant  was  ac- 
quitted. Judge  Levi  Hubbell,  then  Circuit  Judge,  and  ex- 
officio  a  member  of  the  Supreme  Court,  was  on  the  bench, 
and  so  convinced  was  he  of  Radcliffe's  guilt  that  when  the 
verdict  of  acquittal  was  rendered,  he  asked  the  foreman  in 
surprise,  "Is  that  your  verdict."  "It  is,"  said  the  foreman. 
"Then  may  God  have  mercy  on  your  consciences,"  said  the 
Judge.  This  incautious  remark  of  Judge  Hubbell  cut  deeply, 
and  one  of  the  jurymen,  William  K.  Wilson,  appeared  be- 
fore the  legislature  on  the  26th  of  January,  1853,  and  de- 
manded the  impeachment  of  Judge  Hubbell,  charging  him 
with  numerous  acts  of  official  misconduct  upon  the  bench. 
Thus  was  initiated  the  first  and  (up  to  the  present  time) 
the  last  impeachment  trial  which  the  State  has  witnessed. 
Here,  too,  Judge  Ryan  was  the  leading  figure,  here  at  last 
he  stepped  fully  and  fairly  into  the  greatest  forum  of  the 
State,  where  every  eye  was  turned  upon  him,  where  party 
passions  and  personal  hatreds  were  turned  loose,  and  where 
not  the  future  alone,  but  the  distinguished  past,  as  well  of 
one  of  the  State's  most  honored  sons  hung  trembling  in  the 
balance.  Judge  Hubbell  was  an  ambitious  and  able  man. 
He  was  a  Democrat  in  politics,  and  that  party  was  then  in 
control ;  he  was  courteous  and  dignified  in  manner,  of  great 
industry  and  prompt  in  the  despatch  of  business.     Inspired 


Edward  George  Ryan  337 

by  the  sense  of  personal  wrong,  Wilson  ran  down  every 
wandering  rumor,  and  presented  to  the  Assembly  a  long 
array  of  charges  and  specifications  covering  almost  every 
phase  of  judicial  misconduct.  The  Assembly  resolved  to 
report  articles  of  impeachment,  and  appointed  as  managers 
of  the  prosecution  Messrs.  H.  T.  Sanders,  G.  W.  Cate, 
J.  Allen  Barber,  P.  B.  Simpson,  and  E.  Wheeler.  The  man- 
agers employed  Mr.  Ryan  to  conduct  the  case,  and  upon  him 
fell  the  brunt  of  the  battle.  His  opening  argument  was 
made  on  June  13,  1853,  and  the  trial  continued  until  July 
nth  of  the  same  year.  The  testimony  was  voluminous  and 
the  legal  questions  arising  were  many  and  intricate,  but  he 
met  all  the  questions,  whether  of  fact  or  law  with  a  quick- 
ness of  mental  discernment,  a  brilliancy  of  rhetoric  and  a 
wealth  of  learning  which  amazed  his  friends  as  well  as  his 
enemies.  Writ  and  satire  sparkled  in  his  speech,  apt  quota- 
tions and  allusion  added  splendor  to  his  diction,  while  ever 
and  anon  merciless  invective  gleamed  like  the  fabled  sword 
Excalibur. 

He  had  need  of  all  his  talents,  for  opposed  to  him  was 
Jonathan  E.  Arnold,  his  antagonist  in  the  Radcliffe  case, 
one  of  the  ablest  lawyers  who  ever  graced  the  bar  of  the 
State.  The  result  was  an  acquittal  upon  all  of  the  charges. 
Upon  most  of  the  specifications  the  majority  for  acquittal 
was  large,  but  upon  one  the  vote  stood  twelve  for  conviction 
and  twelve  for  acquittal.  It  is  impossible  to  give  extended 
extracts  from  the  many  addresses  made  by  Judge  Ryan  dur- 
ing the  course  of  this  trial,  nor  even  any  adequate  resume. 
It  was  reported  in  shorthand,  and  fills  a  volume  of  more 
than  eight  hundred  pages,  copies  of  which  are  now  quite 
rare.  The  criticism  (and  perhaps  the  only  criticism)  to  be 
made  upon  the  conduct  of  the  case  is  that  the  charges  were 
pressed  with  a  vehemence  amounting  almost  to  extrava- 
22 


338  The  Story  of  a  Great  Court 

gance,  and  this  fact  must  have  gone  far  to  create  sympathy 
for  the  accused.  A  single  extract  from  his  peroration  will 
perhaps  serve  to  demonstrate  all  I  have  said  as  to  the 
strength  of  his  diction,  as  well  as  to  the  scathing  power  of 

his  invective. 

"It  is  a  habit  in  many  of  the  states  to  place  a  statue  of  justice 
upon  their  courthouses  and  capitols.  It  is  well,  Mr.  President, 
that  no  such  statue  adorns  the  dome  of  this  capitol,  before  the 
judgment  in  this  cause  shall  have  settled  the  standard  of  public 
justice  in  this  State.  If  by  your  judgment  this  defendant  is  to 
be  the  model  of  judicial  integrity,  let  the  statue  of  justice  be 
ordered  for  your  Capitol.  But  be  true  to  your  standard.  Fol- 
low no  false  precedents.  It  is  the  habit  to  represent  Justice  as 
a  pure,  young  and  beautiful  maiden,  chastely  and  modestly 
robed,  with  her  eyes  blindfolded,  with  her  virgin  hand  holding 
out  the  pure  scales  of  Justice,  suspended  and  poised  in  the  open 
light  of  day  before  the  world.  That  has  been  the  sculptor's 
dream  of  justice,  sanctioned  by  the  nations  of  the  earth.  But 
with  a  new  standard,  follow  no  old  precedents.  £.sk  your  sculp- 
tor for  no  pure,  blinded  virgin  as  your  ideal  of  justice.  Tell  him 
to  erect  upon  the  dome  of  this  Capitol  the  marble  image  of  a 
jaded,  decayed,  broken,  unclean,  diseased  wanton,  blinking  from 
behind  the  distorted  bandage  put  upon  her  eyes  to  dupe  the 
scruples  of  mankind,  and  reaching  forth  the  hand  which  has 
dropped  the  sword  of  justice,  to  put  the  weight  of  avarice  and 
lust  and  every  unclean  passion  into  the  scales  to  bear  down  truth 
and  right." 

The  Booth  case  and  the  Bashford  case  followed  the  Hub- 
bell  impeachment  in  rapid  succession,  and  in  both  of  these 
thrilling  and  important  controversies  Mr.  Ryan  took  a  lead- 
ing part  as  we  have  already  seen.  Notwithstanding  his 
commanding  abilities,  however,  his  infirmities  of  temper 
had  stood  in  the  way  of  his  success  in  the  ordinary  practice 
of  the  law,  and  for  two  or  three  years  before  his  elevation 
to  the  Supreme  Bench  he  had  been  glad  to  accept  the  posi- 
tion of  City  Attorney  of  the  city  of  Milwaukee. 


EDWARD   GEORGE   RYAN. 
At  the  age  of  45  years. 


Ryan's  Notable  Opinions  339 


CHAPTER  XXVI 

NOTABLE  OPINIONS  OF  JUDGE  RYAN 

The  first  case  which  came  before  the  newly  constituted 
bench  was  not  only  a  great  one,  but  one  which  may  truly 
be  said  to  mark  the  beginning  (in  Wisconsin)  of  the  great 
struggle  between  corporate  power  and  privilege  on  the  one 
hand,  and  the  people  on  the  other. 

The  day  of  the  little  railroad  of  a  hundred  miles  or  more 
in  length,  operating  one  or  two  daily  trains  and  doing  a 
small  business  local  in  its  character,  had  gone ;  the  great 
railroad  corporation,  operating  thousands  of  miles  of  road, 
doing  an  interstate  business  amounting  to  many  millions 
annually,  and  attempting  perhaps  to  pay  dividends  on  fabu- 
lous amounts  of  watered  stock,  had  come,  and  the  people 
had  begun  to  realize  the  changed  conditions. 

Two  really  great  railway  corporations  were  then  operat- 
ing in  Wisconsin,  namely,  the  Chicago,  Milwaukee  and  St. 
Paul,  and  the  Chicago  and  Northwestern  companies.  Be- 
tween them,  they  covered  practically  the  whole  state,  but 
their  termini  were  in  adjoining  states  and  their  interests 
were  largely  foreign.  They  had  generous  charters  which 
clothed  them  with  full  powers  to  regulate  freight  rates  and 
passenger  fares  as  they  chose.  By  means  of  this  power  they 
could  either  make  or  break  a  given  community  or  locality 
by  the  single  stroke  of  a  pen  as  whim  or  interest  might 
dictate.  The  long  tilled  fields  of  Wisconsin  had  now  begun 
to  come  into  competition  with  the  virgin  acres  of  Minne- 
sota and  Dakota,  which  were  almost  boundless  in  their  fer- 
tility, and  it  required  but  slight  discrimination  on  the  part' 


340  The  Story  of  a  Great  Court 

of  the  railroads  to  put  the  Wisconsin  shipper  at  a  great  dis- 
advantage in  the  race  with  his  more  favored  western 
brother. 

The  cry  that  railroad  freight  rates  were  exorbitant,  arbi- 
trary, and  discriminative  became  a  very  loud  one.  It  was 
taken  up  by  the  Patrons  of  Husbandry,  a  national  organiza- 
tion of  farmers,  commonly  called  the  "grangers,"  which  now 
had  become  a  great  power  in  the  west,  and  in  the  fall  of 
1873  the  long  rule  of  the  Republican  party  was  broken  by 
the  election  of  William  R.  Taylor,  the  Democratic,  or  "re- 
form" candidate,  as  governor,  and  a  legislature  which  may 
be  properly  called  the  first  distinctively  anti-railroad  legisla- 
ture in  Wisconsin. 

In  the  senate  there  were  seventeen  Republicans  and  an 
opposition  of  sixteen  senators,  made  up  of  Democrats,  lib- 
eral (anti-Grant)  Republicans  and  so-called  reformers;  in 
the  assembly  there  were  forty-one  Republicans  and  fifty- 
nine  opposition  members  of  various  brands ;  but  there  was 
a  clear  majority  in  both  houses  in  favor  of  railroad  rate 
regulation. 

An  act  fixing  maximum  freight  rates  and  passenger  fares 
to  be  charged  by  the  railroads  of  the  state,  and  providing 
penalties  for  disobedience,  popularly  known  as  the  "Potter 
law"  (because  introduced  by  Robert  L.  D.  Potter,  a  Repub- 
lican senator  from  Waushara  County),  was  promptly  passed 
and  approved  by  Governor  Taylor.  It  was  one  of  the  very 
first  laws  which  attempted  to  fix  railroad  rates,  and  was 
brief  but  quite  comprehensive.  It  divided  the  railroads  of 
the  state  into  three  classes,  according  to  volume  of  business, 
fixed  maximum  passenger  rates  per  mile  for  each  class,  and 
then  divided  freights  into  special  classes,  and  fixed  maxi- 
mum rates  to  be  charged  for  the  transportation  of  each 
class.     It  also  created  a  railroad  commission,  composed  of 


Ryan's  Notable  Opinions  341 

three  members,  and  gave  this  commission  power  to  investi- 
gate into  the  actual  cost  of  the  roads,  their  gross  and  net 
receipts  and  indebtedness,  and  to  reduce  the  freight  rates 
fixed  by  the  law  when  it  could  be  done  without  injury  to  the 
road.  The  law  went  into  effect  in  April,  1874,  but  was  ab- 
solutely disregarded  by  the  great  railroad  companies,  who 
took  the  ground  that  their  charters  formed  inviolable  con- 
tracts with  the  state,  and  gave  them  power  to  fix  freight 
rates  as  they  chose,  with  which  power  the  legislature  could 
not  interfere. 

Early  in  July,  1874,  Hon.  A.  Scott  Sloan,  then  Attorney 
General  of  the  State,  filed  informations  in  the  Supreme 
Court,  and  moved  for  writs  of  injunction  against  both  of 
the  great  railway  corporations  already  named  to  restrain 
them  from  charging  greater  passenger  and  freight  rates 
than  were  permitted  by  the  act.  With  the  Attorney  General 
in  this  litigation  were  associated  I.  C.  Sloan,  his  brother, 
Harlow  S.  Orton  and  ex-Chief  Justice  Dixon,  all  great  law- 
yers;  for  the  Northwestern  Company,  C.  B.  Lawrence  and 
B.  C.  Cook  of  Chicago  and  George  B.  Smith  of  Madison 
appeared,  and  for  the  St.  Paul  Company,  John  W.  Cary  of 
Milwaukee  and  Phillip  L.  Spooner  of  Madison. 

The  motions  were  argued  together  in  August,  1874,  the 
arguments  occupying  nearly  or  quite  a  week.  Before  the 
question  of  the  power  of  the  legislature  to  regulate  rates 
could  be  taken  up  two  preliminary  questions  had  to  be  con- 
sidered, namely,  the  extent  of  the  original  jurisdiction  of  the 
Supreme  Court,  and  whether  it  covered  such  a  case,  and  the 
further  question  whether  the  constitution  makers,  when  they 
named  the  writ  of  injunction  in  connection  with  the  strictly 
prerogative  writs  like  mandamus  and  habeas  corpus  in  the 
last  clause  of  Section  3  of  Art.  VII  of  the  constitution,  in- 
tended to  raise  it  to  the  character  and  give  it  the  functions 


342  The  Story  of  a  Great  Court 

of  a  prerogative  writ,  or  intended  to  leave  it  simply  a  judicial 
writ  or  order  issued  in  aid  of  a  judgment,  either  interlocu- 
tory or  final.  The  case  was  worthy  of  the  Court  which 
heard  it,  and  of  the  eminent  counsel  who  argued  it. 

It  was  decided  September  15,  1874,  and  the  state  was  suc- 
cessful on  all  points  raised.1  Not  only  was  the  original  ju- 
risdiction of  the  Court  sustained  on  the  ground  that  the 
question  was  one  affecting  the  sovereignty  of  the  state,  its 
franchises  and  prerogatives,  but  the  power  of  the  legislature, 
by  virtue  of  that  clause  of  the  constitution  reserving  the 
right  to  alter  or  repeal  corporate  charters,2  to  control  its 
corporate  creations  by  reasonable  regulations  not  confisca- 
tory in  their  effect  was  fully  vindicated. 

The  opinion  was  written  by  Chief  Justice  Ryan,  and  prob- 
ably it  is  his  greatest.  The  case  has  passed  into  the  books  as 
a  leading  case.  It  was  the  first  case  to  mark  out  with  pre- 
cision the  previously  ill-defined  field  of  the  original  jurisdic- 
tion of  the  Supreme  Court,  and  it  also  was  a  pioneer  case  in 
vindication  of  the  legislative  power  of  control  over  corpora- 
tions. It  has  been  cited  with  approval  in  fifteen  states,  as 
well  as  in  the  federal  courts.  Had  Chief  Justice  Ryan  writ- 
ten no  other  opinion  than  this,  his  high  rank  as  a  jurist 
would  still  have  been  secure. 

All  the  questions  raised  are  treated  in  a  style  which  be- 
trays not  only  the  master  hand  of  the  learned  lawyer,  but 
the  lucidity  and  eloquence  of  the  great  orator.  The  opinion 
was  read  at  length  from  the  bench  by  the  Chief  Justice,  a 
proceeding  which  was  very  unusual  in  the  Court,  and  con- 
sumed nearly  or  quite  an  entire  session.  It  left  no  substan- 
tial question  undecided,  and  in  fact  terminated  the  entire 
litigation.     The  railroad  companies  recognized  the  futility 


1  Att'y  Gen.  vs.  Ry.  Co's.  35  Wis.  425. 

2  Const.  Wis.  Sec.  1,  Art.  XI. 


Ryan's  Notable  Opinions  343 

of  further  litigation  and  concluded  to  obey  the  law  while  it 
existed ;  reserving  to  themselves  the  right  to  take  measures 
to  secure  a  legislature  which  would  repeal  the  law,  in  which 
they  succeeded  two  years  later.  The  times  were  not  yet 
ripe  for  efficient  railway  regulation ;  the  Potter  law  was 
ahead  of  its  time,  but  it  and  the  decision  under  it  remained 
as  landmarks,  by  the  aid  of  which  a  later  generation  reached 
effective  results. 

It  would  be  impossible  to  give  any  adequate  idea  of  the 
opinion  by  isolated  extracts,  but  a  quotation  or  two  may  not 
be  out  of  the  way.  In  discussing  the  remedy  by  injunction, 
after  noting  the  marvellous  growth  in  wealth  and  power  of 
modern  corporations,  he  says : 

"It  would  have  been  a  mockery  of  justice  to  have  left  corpora- 
tions, counting  their  capital  by  millions,  their  lines  of  railroads 
by  hundreds  and  even  sometimes  by  thousands  of  miles,  their 
servants  by  multitudes,  their  customers  by  the  active  members 
of  society,  subject  only  to  the  common  law  liabilities  and  reme- 
dies which  were  adequate  protection  against  turnpike  and 
bridge  and  ferry  companies  in  one  view  of  their  relations  to  the 
public;  and  in  another  view  to  the  same  liabilities  and  remedies 
which  were  found  sufficient  for  common  carriers  who  carried 
passengers  by  a  daily  line  of  stages  and  goods  by  a  weekly  wagon, 
or  both  by  a  few  coasting  or  inland  craft,  with  capital  and  influ- 
ence often  less  than  those  of  a  prosperous  village  shopkeeper. 
The  common  law  remedies,  sufficient  against  these  were,  In  a 
great,  degree,  impotent  against  the  great  railway  companies,  al- 
ways too  powerful  for  private  right,  often  too  powerful  for  their 
own  good.  It  was  in  these  circumstances  that  the  English  courts 
of  equity  applied  their  restraining  jurisdiction  at  public  or  pri- 
vate suit,  and  laid  on  these  great  companies  the  strong  hand  of 
equitable  control.  And  all  England  had  occasion  to  bless  the 
courage  and  integrity  of  her  great  judges  who  used  so  ably  and 
so  freely  and  so  beneficially  the  equity  writ,  and  held  great  cor- 
porations to  strict  regard  to  public  and  private  right.  Every 
person  suffering,  or  about  to  suffer  their  oppression  by  a  disre- 
gard of  corporate  duty  may  have  his  injunction.  When  their 
oppression  becomes  public,  it  is  the  duty  of  the  attorney  general 
to  apply  for  the  writ  on  behalf  of  the  public." 


344  The  Story  of  a  Great  Court 

The  general  claim  made  by  the  railroad  companies  that 
the  act  of  the  legislature  was  confiscatory  and  violates  the 
rights  of  creditors  of  the  companies,  he  answers  as  follows : 

"Of  the  same  type  is  the  argument  that  ch.  273  violates  the 
contracts  of  these  defendants  with  their  creditors.  This  position 
appears  to  us  to  rest  in  the  absurdity  that  the  mortgagor  can 
vest  in  his  mortgagee  a  greater  estate  than  he  had  himself.  Per- 
haps the  statute  may  lessen  the  means  of  payment  of  the  defend- 
ants. So  would  a  fine  for  homicide,  under  the  police  power  of 
the  state.  But  to  lessen  the  means  of  payment  of  a  contract,  is 
not  to  impair  the  obligation  of  the  contract.  These  defendants 
took  their  franchises,  and  their  creditors  invested  their  money, 
subject  to  the  reserved  power,  and  suffer  no  legal  wrong  when 
that  is  exercised. 

"It  was  said  that  ch.  273  violates  the  rights  of  property  of 
these  defendants.  We  cannot  perceive  that  it  does.  Whether  it 
will  lessen  the  income  of  their  property,  we  cannot  foresee.  We 
only  know  that  it  does  lessen  their  rates  of  toll.  But  it  does  not 
wrongfully  touch  their  property.  As  far  as  the  franchise  is  to 
be  considered  property,  it  was  subject  to  this  very  limitation; 
and  the  limitation  is  the  exercise  of  a  right  over  it,  which  does 
not  violate.  The  right  of  limitation  entered  into  the  property 
and  qualified  it.  And  the  act  does  not  at  all  meddle  with  tho 
material  property,  distinct  from  the  franchise.  It  acts  only  on 
the  franchise,  not  at  all  upon  the  material  property.  And  it  ia 
sufficient  to  say  that  they  acquired  the  material  property,  as  dis- 
tinct from  the  franchise,  subject  to  the  alteration  of  the  fran- 
chise under  the  reserved  power.  That  was  a  condition  under 
which  they  chose  to  hold  their  property;  and  they  have  no  right 
to  complain  when  the  condition  is  enforced.  Their  rights  in 
their  material  property  are  inviolate,  and  shall  never  be  violated 
with  the  sanction  of  this  court.  But  they  are  no  more  violated 
by  this  act  and  its  enforcement,  than  by  foreclosure  of  a  mort- 
gage or  ejectment  by  paramount  title.  It  is  a  right  over  prop- 
erty which  is  enjoyed,  not  a  wrong  to  right  in  property. 

"We  listened  to  a  good  deal  of  denunciation  of  chapter  273, 
which  we  think  was  misapplied.  We  do  not  mean  to  say  that 
the  act  is  not  open  to  criticism.  We  only  say  that  such  criti- 
cism is  unfounded.  It  was  said  that  its  provisions,  which  have 
been  noticed,  were  not  within  the  scope  of  the  legislative  func- 
tion; as  if  every  compilation  of  statutes,  everywhere,  in  all 
time,  did  not  contain  provisions  limiting  and  regulating  tolls; 
as  if  the  very  franchise  altered  were  not  a  rebuke  to  such  clamor 


♦ 

■'      /                                      S- 

S                                                                                                                                                                                                                  y 

<<,y  ,            /  ,/      '                                       5                                    < 

j    <    ,       '                  *        ■      ■■       *      "' 

s    ,        m„Au                 '        6        .'                          .-          ^        '           < 

4  '  ,.-  --    fA         /■  '  .ss        ■ 

'  's 

,  ,.  -    t     -     ■                                 ,       ' 

■  4  ,.             ■               ' 

,  ■  ■' 

■      ■  '     /                                                                                             • 

.-■/.,:,■      -'                  / 

■    / 

;     i  >,-'.-     .        f i    ■' 

<     ■  /,,<  '••>     %  /  -    '       /-    •  '■  y 

.      .    'at    '</  ;    /'/'<'            ■           ■   /    '             '■                      * 

,      '   '',        <y'                         ,    ,    .  ■           -              *       ' 

s         /    /' 

/■   /                                                                                                                                                                            '     - 

Reduced    facsimile  of  a    page   from   the   manuscripl    opinion    of 
Judge  Ryan  In  the  Railroad  Cases,  36  Wis.  425. 


Ryan's  Notable  Opinions  345 


It  was  repeated,  with  a  singular  confusion  of  ideas  and  a  singu- 
lar perversion  of  terms,  that  the  provisions  of  the  chapter 
amount  to  an  act  of  confiscation;  a  well  defined  term  in  the  law 
signifying  the  appropriation  by  the  state  to  itself,  for  its  own 
use,  as  upon  forfeiture,  of  the  whole  thing  confiscated.  It  was 
denounced  as  an  act  of  communism.  We  thank  God  that  com- 
munism is  a  foreign  abomination,  without  recognition  or  sym- 
pathy here.  The  people  of  Wisconsin  are  too  intelligent,  too 
staid,  too  just,  too  busy,  too  prosperous,  for  any  such  horror  of 
doctrine;  for  any  learning  towards  confiscation  or  communism. 
And  these  wild  terms  are  as  applicable  to  a  statute  limiting  the 
rates  of  toll  on  railroads,  as  the  term  murder  is  to  the  surgeon's 
wholesome  use  of  the  knife,  to  save  life,  not  to  take  it.  Such  ob- 
jections do  not  rise  to  the  dignity  of  argument.  They  belong  to 
that  order  of  grumbling  against  legal  duty  and  legal  liability, 
which  would  rail  the  seal  from  off  the  bond.  They  were  not 
worthy  of  the  able  and  learned  counsel  who  repeated  them,  and 
are  hardly  worthy  even  of  this  notice  in  a  judicial  opinion. 

"We  have,  according  to  our  duty,  dealt  with  the  questions  we 
have  considered  as  questions  of  law.  We  cannot  judge  of  the 
policy  or  of  the  fairness  of  the  fact.  That  is  for  the  legislature. 
We  can  only  say  tbat  it  is  the  law.  We  cannot  judge  of  the 
propriety  of  these  informations.  That  is  for  the  law  officers  of 
the  state.  We  are  only  to  determine  what  the  law  is,  and  to  ad- 
minister it  as  we  find  it,  in  causes  over  which  we  have  no  other 
control.  And  we  can  join  in  no  outcry  against  the  law,  which  it 
is  our  duty  to  administer.  Neither  can  we  countenance  any  out- 
cry against  the  railroads.  We  cannot  consider  any  popular  ex- 
citement against  them  warranted  or  useful.  The  railroads  have 
their  rights,  and  so  have  the  people.  Whatever  usurpation  or 
abuses,  if  any,  the  railroad  companies  may  be  guilty  of,  can  find 
a  remedy  in  calm,  just,  appropriate  legislation.  And  this  court 
will  firmly  and  impartially  protect  all  the  rights  of  the  railroads 
and  of  the  people,  in  all  litigation  which  may  come  here.  But 
we  can  take  no  part  in  popular  outcry  against  these  companies, 
or  countenance  any  prejudice  against  them." 

The  question  as  to  the  extent  of  the  original  jurisdiction 
of  the  Supreme  Court  was  further  elaborated  by  Chief  Jus- 
tice Ryan  in  the  case  of  Attorney  General  v.  Ran  Claire,3 
which  arose  at  the  January  term,   1875,  and  the  treatment 


37  Wis.  400. 


346  The  Story  of  a  Great  Court 

of  it  there  is  so  full  and  satisfactory  that  it  has  served  to 
settle  and  define  that  jurisdiction  ever  since.  That  treat- 
ment is  as  follows : 

"It  is  not  enough  to  put  in  motion  the  original  jurisdiction  of 
this  court,  that  the  question  is  publici  juris;  it  should  be  a  ques- 
tion quod  ad  statum  reipublicae  pertinet;  one  'affecting  the  sov- 
ereignty of  the  state,  its  franchises  or  prerogatives,  or  the  liber- 
ties of  its  people.'    Att'y  Gen.  v.  R.  R.  Companies,  35  Wis.  425. 

"It  was  repeated  in  that  case,  as  it  had  been  held  in  Att'y  Gen. 
v.  Blossom,  1    Wis.  317,  that  'this    court   takes   the    prerogative 
writs,  for  prerogative  jurisdiction,  with  power  to  put  them  only 
to  prerogative  uses  proper.'     Prerogative  writs  often  go  in  aid 
of  private  right  or  of  local  public  right.     But  the  original  juris- 
diction of  this  court  is  not  only  limited  to  the  prerogative  writs, 
but  it  is  confined  to  prerogative  causes.     The  word  properly  im- 
plies sovereign  right.     Jacob  defines  it  as  'that  power,  pre-emi- 
nence or  privilege  which  the  king  hath  and  claimeth  over  and 
beyond  other  persons,  and  above  the  ordinary  course  of  the  com- 
mon law,  in  right  of  his  crown.'     And  so  we  find  the  object  of 
the  prerogative  jurisdiction  of  this  court  declared  in  Att'y  Gen. 
v.  Blossom:  'Contingencies  might  arise,  where  in  the  prerogatives 
and  franchises  of  the  state,  in  its  sovereign  character,  might  re- 
quire the  interposition  of  the  highest  judicial  tribunal  to  pre- 
serve them.'     And  though  the  question  did  not  arise  in  the  case, 
it  is  quite  evident  from  all  that  has  any  bearing  on  it  in  Att'y 
Gen.  v.  R.  R.  Companies,  that  to  bring  a  case  properly  within  the 
original   jurisdiction   of  this   court,   it  should   involve,   in   some 
way,  the  general  interest  of  the  state  at  large.     It  is  very  true 
that  the  whole  state  has  an  interest  in  the  good  administration 
of  every  municipality;   so  it  has  in  the  well  doing  of  every  citi- 
zen.    Cases  may  arise,  to  apply  the  words  of  C.  J.  Stow,  geograph- 
ically local,  politically  not  local;  local  in  conditions,  but  directly 
affecting  the  state  at  large.     Cases  may  occur  is  which  the  good 
government  of  a  public  corporation,  or  the  proper  exercise  of  the 
franchise  of  a  private  corporation,   or  the  security  of  an   indi- 
vidual, may  concern  the  prerogatives  of  the   state.     The   state 
lends  the  aid  of  its  prerogative  writs  to  public  and  private  cor- 
porations and  to  citizens  in  all  prOper  cases.     But  it  would  be 
straining  and  distorting  the  notion  of  prerogative  jurisdiction  to 
apply  it  to  every  case  of  personal,  corporate  or  local  right,  where 
a  prerogative  writ  happens  to  afford  an  appropriate  remedy.     To 
warrant  the  assertion  of  original  jurisdiction  here,  the  interest 
of  the  state  should  be  primary  and  proximate,  not  indirect  or 


Ryan's  Notable  Opinions  347 

remote;  peculiar  perhaps  to  some  subdivision  of  the  state,  but 
affecting  the  state  at  large,  in  some  of  its  prerogatives;  raising  a 
contingency  requiring  the  interposition  of  this  court  to  preserve 
the  prerogatives  and  franchises  of  the  state,  in  its  sovereign 
character;  this  court  judging  of  the  contingency,  in  each  case, 
for  itself.  For  all  else,  though  raising  questions  publici  juris, 
ordinary  remedies  and  ordinary  jurisdictions  are  adequate.  And 
only  when,  for  some  peculiar  cause,  these  are  inadequate,  will 
the  original  jurisdiction  of  this  court  be  exercised  for  protection 
of  merely  private  or  merely  local  rights." 

The  case  of  State  ex  rel.  Drake  v.  Doyle*  arising  in  1876 
was  in   some  respects  quite  as   important  as  the   railroad 
cases.     It  involved  the  power  of  the  state  to  impose  condi- 
tions upon  foreign  corporations  desiring  to  transact  busi- 
ness in  this  state,  and  seemed  to  involve  also  a  direct  con- 
flict with  a  decision  previously  made  by  the  Supreme  Court 
of  the  United  States.     It  arose  in  this  wise :  by  chapter  56 
of  the  laws  of  1870  the  legislature  of  Wisconsin  had  pro- 
vided that  a  foreign  insurance  company  might  be  licensed  to 
do  business  in  this  state  upon  filing  with  the  secretary  of 
state  documents,  among  which  was  an  agreement  not  to  re- 
move any  actions  brought  against  it  to  the  United  States 
courts.    The  Home  Insurance  Company  of  New  York  had 
filed  the  agreement  and  received  its  license,  and  then  when 
suit  was  brought  against  it  in  the  state  court  had  petitioned 
that  court  to  remove  the  case  to  the  United  States  court, 
under  the  act  of  Congress  providing  for  such  removal.    The 
court  denied  the  petition,  tried  the  case  and  rendered  judg- 
ment for  the  plaintiff,  and  the  Supreme  Court  of  Wisconsin 
on  appeal  affirmed  the  judgment  in  an  opinion  by  Chief  Jus- 
tice Dixon,  on  the  ground  that  it  was  perfectly  competent  for 
the  insurance  company  to  waive  its  right  of  removal,  and 
that  the  courts  would  enforce  its  agreement  to  that  effect.5 

4  40  Wis.  175. 

5  Morse  v.  Ins.  Co.  30  Wis.  496. 


348  The  Story  of  a  Great  Court 

This  case  went  to  the  Supreme  Court  of  the  United  States, 
and  the  judgment  was  reversed  by  a  divided  court,  the  ma- 
jority holding  that  the  statute  was  an  obstruction  to  the 
right  of  a  citizen  of  another  state  to  remove  a  case  to  the 
United  States  Courts  guaranteed  by  the  federal  constitution, 
and  hence  void.6  In  1872,  by  chapter  64  of  the  same  laws  of 
that  year,  the  legislature  of  Wisconsin  passed  another  act 
providing  that  if  any  foreign  insurance  company  made  a 
petition  to  remove  an  action  pending  against  it  to  the  United 
States  Court,  its  license  to  do  business  in  this  state  should 
be  immediately  revoked  by  the  secretary  of  state.  Action 
having  been  brought  in  the  state  court  against  the  Conti- 
nental Insurance  Company  of  New  York,  it  made  its  peti- 
tion for  removal  to  the  United  States  Court,  and  the  case 
was  removed.  Thereupon  a  private  citizen  applied  to  the 
Supreme  Court  of  this  state  for  a  writ  of  mandamus,  com- 
pelling the  secretary  of  state  to  revoke  the  license  of  the 
company  for  this  violation  of  its  agreement.  At  first  blush 
it  would  seem  that  the  case  of  Insurance  Co.  v.  Morse  was 
decisive  on  the  question,  but  the  court  held  in  a  very  learned 
and  persuasive  opinion  by  the  Chief  Justice  that  the  case 
was  not  decided  by  the  Morse  case,  and  that  the  state,  hav- 
ing power  to  entirely  exclude  foreign  corporations,  had  nec- 
essarily power  to  license  them  to  enter  the  state,  upon  con- 
dition of  their  forbearing  to  exercise  a  right  and  revoke  that 
license  upon  their  attempting  to  exercise  it.  The  impor- 
tance of  the  case  and  the  gravity  of  the  situation  was  fully 
recognized,  but  there  was  no  attempt  to  gloss  over  or  evade 
the  points  involved.  The  opinion  was  an  unanswerable 
argument  based  upon  decisions  rendered  by  the  Supreme 
Court  of  the  United  States  itself.  Of  course,  the  case  was 
at  once  taken  to  the  Supreme  Court  of  the  United  States 


c  Insurance  Co.  v.  Morse,  20  Wall.  445. 


Ryan's  Notable  Opinions  349 

and  that  Court,  while  announcing  that  the  Morse  case  was 
not  overruled,  in  fact  receded  from  the  position  taken  in 
that  case,  and  affirmed  the  judgment  of  the  Supreme  Court 
of  Wisconsin.  The  result  was  not  only  a  victory  for  the 
state,  vindicating  its  right  of  effective  control  over  foreign 
corporations,  but  also  a  rare  tribute  by  the  greatest  judicial 
tribunal  of  the  nation  to  the  reasoning  powers  of  Chief  Jus- 
tice Ryan. 

Great  constitutional  cases  are,  however,  not  very  frequent 
even  in  courts  of  last  resort.  The  great  mass  of  litigation 
concerns  merely  private  rights,  and  requires  the  application 
of  very  ordinary  legal  principles;  it  gives  neither  oppor- 
tunity nor  excuse  for  bursts  of  eloquence.  The  desideratum 
in  such  cases  is  a  clear  and  accurate  statement  of  legal  prin- 
ciples, and  a  logical  demonstration  of  their  application  in 
the  case  in  hand,  rather  than  a  display  of  rhetoric.  Yet 
even  in  such  cases  it  must  be  admitted  that  fitting  language 
and  faultless  diction  add  materially  to  the  strength  and  con- 
vincing character  of  the  opinion. 

A  few  extracts  will  show  that  Jude  Ryan  was  not  lacking 
in  this  regard.  Thus  in  the  Craker  case7  commonly  known 
as  the  "Kissing  case,"  where  a  young  lady  passenger  on  an 
accommodation  train  was  forcibly  kissed  by  the  conductor, 
and  sued  the  railway  company  for  damages,  the  following 
very  conclusive  argument  occurs  in  the  opinion  of  the  Chief 
Justice.  After  noting  the  argument  made  by  the  railway 
company  that  it  might  have  been  liable  had  the  young  lady 
not  been  protected  by  the  conductor  from  assault  by  a  third 
person,  but  was  not  liable  when  its  own  employee  made  the 

assault,  he  says : 

"Jt  is  contended,  *  *  *  as  we  understand  it,  that  if  one 
hire  out  his  dog  to  guard  sheep  against  wolves,  and  the  dog  sleep 

7  Craker  v.  C.  &  N.  W.  Ry.  36  Wis.  657. 


350  The  Story  of  a  Great  Court 

•while  the  wolf  makes  way  with  a  sheep,  the  owner  is  liable; 
but  if  the  dog  play  wolf  and  devour  the  sheep  himself,  the  owner 
is  not  liable.  The  bare  statement  of  the  proposition  seems  a 
reductio  ad  absurdum.  The  radical  difficulty  in  the  argument  is 
that  it  limits  the  contract.  The  carriers'  contract  is  to  protect 
the  passenger  against  all  the  world;  the  appellant's  construction 
is  that  it  was  to  protect  the  passenger  against  all  the  world  ex- 
cept the  conductor,  whom  it  appointed  to  protect  her,  reserving 
to  the  shepherd's  dog  a  right  to  worry  the  sheep.  No  subtleties 
in  the  books  could  lead  us  to  sanction  so  vicious  an  absurdity." 

In  Wight  v.  Rindskopf,8  where  the  question  was  whether 
services  rendered  by  a  lawyer  in  endeavoring  to  influence 
a  public  prosecutor,  so  that  the  client  might  escape  with  a 
minimum  punishment  could  be  recovered  for  as  legal  serv- 
ices, it  was  held  that  such  a  contract  was  against  public  pol- 
icy and  sound  morals,  and  could  not  be  the  basis  of  a  con- 
tract to  pay  for  them ;  in  the  opinion  it  is  said : 

"The  profession  of  the  law  is  not  one  of  indirection,  circum- 
vention or  intrigue.  It  is  the  function  of  the  profession  to  pro- 
mote, not  to  obstruct  the  administration  of  justice.  In  litigation 
a  lawyer  becomes  the  alter  ego  of  his  client;  and  professional 
retainer  rests  in  absolute  and  sacred  confidence.  But  the  duty 
imposed  by  professional  retainer  is  direct  and  open.  Profes- 
sional function  is  exercised  in  the  sight  of  the  world.  Profes- 
sional learning  and  skill  are  the  only  true  professional  strength. 
Forensic  ability  is  the  only  true  professional  influence  on  the 
course  of  justice.  Private  preparation  goes  to  this  only  as  sharp- 
ening the  sword  goes  to  battle.  Professional  weapons  are  wielded 
only  in  open  contest.  No  weapon  is  professional  which  strikes 
in  the  dark.  The  work  of  the  profession  is  essentially  open,  be- 
cause it  is  essentially  moral.  No  retainer  in  wrong  is  profes- 
sional. A  lawyer  may  devote  himself  professionally  to  the 
legitimate  business  of  his  client,  but  he  cannot  be  retained  in 
what  may  not  be  rightfully  and  lawfully  done.  He  may  defend 
a  wrong  done  in  the  past,  but  he  cannot  be  privy  to  the  doing  a 
wrong  in  the  present.  The  profession  is  not  sinless,  but  its  sins 
are  all  unprofessional.  When  a  member  of  the  bar  is  privy  to 
the  wrongdoing  of  his  client,  he  is  his  client's  accomplice,  not 
his  lawyer." 


s  43  Wis.  344. 


Ryan's  Notable  Opinions  351 

A  divorce  action  in  1875,9  afforded  opportunity  for  an 
eloquent  tribute  to  Christian  marriage,  which  is  well  worth 
reading  ;  it  runs  as  follows  : 

"It  was  argued  that  a  statute  providing  for  the  support  of  the 
wife  by  the  husband,  after  divorce  a  vinculis,  is  a  hard  statute, 
which  should  be  strictly  construed.     It  was  urged  that  in  such 
a  case  the  husband  and  wife  are  strangers;   as  merely  so,  as  if 
they  had  not  been  married;    and  that  calling  upon  a  divorced 
husband  to  support  his  divorced  wife,  out  of  his  subsequent  es- 
tate, is  calling  upon  him  to  support  a  person  standing  in  no  rela- 
tion to  him,  having  no  moral  claim  upon  him.     We  cannot  assent 
to  such  a  view,  or  even  appear  to  sanction  it  by  silence.     With- 
out considering  the  moral  effect  on  society  of  the  easy  rule  of 
divorce  current  in  our  day,  we  take  occasion  to  say  that  there  are 
things  too  sacred  and  too  steadfast  in  nature,  for  any  statute, 
or  any  judgment  under  a  statute,  to  affect.     Judgment  of  divorce 
can  sever  the  legal  bond  of  marriage,  but  it  cannot  undo  the 
natural  relation  which  husband  and  wife  bear  to  each  other  and 
to  their  children,  cannot  help  but  bear,  and  must  bear  always. 
Statutes  and  judgments  may  control  the  future,  but  cannot  cancel 
the  past;   may  solve  social,  but  cannot  annul  natural  relations. 
Marriage  was  before  human  law,  and  exists  by  higher  and  holier 
authority — the  Divine  Ord^r,  which  we  call  the  law  of  nature. 
The  law  and  the  judgment  of  the  law  of  the  land  may  separate 
husband  and  wife,  and  set  them  legally  free;  but  law  or  judgment 
cannot  obliterate  their  cohabitation  in  marriage,  or  the  natural 
and  indelible  relation  which  cohabitation  in  marriage  fixes  on 
them  forever.     It  is  shocking  to  the  moral  sense  of  mankind  to 
reduce  the  natural  correlation  of  man  and  woman  in  marriage, 
to  a  mere  partnership  of  sex,  absolutely  effaced  and  undone  by 
dissolution.     The  natural  tie  of  marriage  is  beyond  the  jurisdic- 
tion of  divorce;  as  essentially  without  the  power  of  the  law,  as 
the  natural  relation  of  parent  and  child.     The  power  of  the  law, 
over  either,  is  limited    to   legal    relations.      It   may    attaint  the 
heritable  quality  of  blood,  but  cannot  corrupt  the  natural  blood. 
And  the  law  which  is  impotent  to  estrange  the  mutual  blood  of 
husband  and  wife  in  the  bodies  of  their  children,  cannot  estrange 
the  mutual  bodies  from  whose  union  the  children  spring.    The 
natural  seal  of  affinity  is  upon  them.     They  can  never  again  be 
mere  strangers  on  earth.     The  intercourse  appearing  in  this  rec- 
ord between  these  unhappy  parties,  during  their  nine  years  of 


9  Campbell  v.  Campbell,  37  Wis.  206. 


352  The  Story  of  a  Great  Court 

legal  alienation,  proves  that  they  are  not  strangers;  that  there 
is  a  tie  between  them,  a  privity  of  life,  an  affinity  of  being,  as 
enduring  in  hate  as  in  love,  in  disjunction  as  in  cohabitation; 
which  survives  in  their  child,  and  would  survive  their  child  in 
themselves,  as  long  as  both  should  live;  which  God  will  not  and 
man  cannot  dissolve,  until  death  shall  part  them. 

"Naturam  expellas  furea;  tamen  usque  recurret, 
Et  male  pcrrumpet  furtim  fast.idia  victrix." 

Sometimes,  though  rarely,  a  play  of  wit  lightens  the  opin- 
ion, as  in  the  case  of  Vassau  v.  Thompson,10  where  a  man 
was  sued  because  his  dog  worried  a  cow  to  death  by  chas- 
ing it.  It  seemed  that  the  master  was  not  present,  but  had 
been  accustomed  to  set  the  dog  upon  cows  on  other  occa- 
sions.   In  a  dissenting  opinion  in  this  case,  the  Chief  Justice 

says : 

"The  subject  of  the  complaint  is  a  dog  and  a  cow,  hereditary 
enemies  since  the  days  of  the  House  that  Jack  built.  But  in  this 
case  it  was  the  dog  that  killed  the  cow.  *  *  *  It  would  be  a 
violent  and  irrational  presumption  that  either  human  or  brute 
servant,  trained  to  a  particular  vice  by  a  master  whom  he  loves 
and  reverences  would  never  indulge  in  the  vice  for  his  own 
gratification  without  orders.  Habit  becomes  a  second  nature, 
and  this  dog  presumably  acquired  a  personal  taste  for  oxtail." 

When  the  conduct  of  client  or  counsel  called  for  rebuke, 
he  was  apt  to  administer  it  in  scathing  language,  yet  he 
could  be  gentle,  as  the  following  instance  demonstrates.  An 
eminent  lawyer  of  Milwaukee  when  defeated  in  an  impor- 
tant case,  made  a  motion  for  rehearing,  and  opened  his  brief 
with  the  following  sentence : 

"The  series  of  misfortunes  which  I  have  latterly  met  with  at 
the  hands  of  this  court  has  shaken  my  confidence  in  the  result 
of  any  effort  I  may  make  to  convince  the  Court,  or  to  obtain  its 
favorable  judgment  in  any  case  where  a  serious  contest  is  pos- 
sible." 

After  quoting  this  sentence,  the  Chief  Justice  says : 

"The  fact  may  be  as  stated,  though  the  late  volumes  of  reports 
do  not  quite  appear  to  verify  it.     But  the  suggestion  is  not  fair, 


10  46  Wis.  345. 


Ryan's  Notable  Opinions  353 

either  towards  the  learned  counsel  himself  or  toward  the  court. 
For  it  may  be  an  imputation  of  failure  in  the  intelligent  dis- 
charge of  duty  equally  to  either.  It  does  not  seem  to  have  oc- 
curred to  the  learned  counsel  that  the  misfortune  of  which  he 
complains  may  be  attributable  to  bis  clients,  or  to  the  work 
which  they  give  him  to  do.  A  great  judge  once  said  that  great 
lawyers  were  frequently  unsuccessful  for  the  reason  that,  being 
generally  expensive  luxuries,  they  are  apt  to  be  employed  only  in 
desperate  cases.  This  may  be  the  occasion  of  the  learned  coun- 
sel's complaint,  and  his  consolation." 

Extracts  from  his  opinions  might  be  multiplied  almost  in- 
definitely to  show  how  he  illumined  every  legal  question 
which  he  discussed,  but  the  proper  limitations  of  this  work 
seem  to  forbid.  Singularly  enough,  his  opinions  may  be 
searched  almost,  if  not  quite,  in  vain  for  any  examples  of 
the  vehement  language  or  extravagant  statement  which  were 
so  frequent  with  him  as  an  advocate,  and  this  notwithstand- 
ing the  fact  that  his  health  was  shattered  by  disease.  Either 
his  elevation  to  the  Supreme  Bench  had  sobered  him,  or  his 
exalted  ideas  of  the  proper  functions  of  a  judge  had  made 
him  more  careful  and  considerate. 

Chief  Justice  Cole  has  borne  testimony  to  the  fact  that  in 
the  consultation  room  he  was  uniformly  courteous  to  his 
associates,  always  the  calm  dignified  judge,  freely  express- 
ing views  and  discussing  all  questions  of  law  and  fact  with 
the  manifest  desire  of  reaching  the  right  result.  The  truth 
of  this  statement  seems  to  be  borne  out' by  the  character  of 
his  opinions.     Ex-Senator  Vilas  says  of  them : 

"His  opinions  were  not  only  profound,  but  profoundly  beauti- 
ful in  every  circumstance  which  excites  the  admiration  of  a 
lawyer.  It  is  matter  of  no  wonder  that  a  great  university  of 
the  land  has  chosen  them  for  recommendation  to  students  of  law, 
as  models  of  the  purity,  beauty  and  strength  of  the  English 
tongue.  They  will  carry  his  name  with  growing  honor  to  gene- 
rations of  students  and  lawyers  yet  unborn." 
23 


354  The  Story  of  a  Great  Court 


CHAPTER  XXVII 

ENLARGEMENT  OF   THE   BENCH JUSTICES   0RT0N   AND 

TAYLOR 

The  business  of  the  Court,  which  had  been  rapidly  in- 
creasing before  Judge  Dixon's  resignation,  continued  to  in- 
crease after  Judge  Ryan's  appointment  with  accelerated 
speed.  The  flood  of  personal  injury  litigation  had  begun 
to  come  and  was  to  increase  for  many  years.  There  were 
no  stenographers,  typewriters,  or  even  copyists.  Each  judge 
wrote  and  copied  his  opinions  in  longhand.  The  purely 
clerical  work  was  necessarily  very  tedious  in  addition  to  the 
heavy  judicial  labor.  Judge  Ryan's  health  was  bad  and  his 
temper  worse.  While  on  the  bench  or  in  the  consultation 
room  he  was  the  courteous,  dignified  and  able  judge,  as  we 
know  from  Judge  Cole's  testimony,  but  there  his  courtesy  to 
his  colleagues  practically  ceased.  For  weeks  at  a  time  he 
would  not  speak  to  them  when  he  met  them  outside  of  the 
court  room  or  consultation  room.  When  they  deemed  it  nec- 
essary to  increase  the  number  of  cases  upon  an  assignment 
from  fifteen  to  twenty-five  in  order  to  keep  up  with  the  busi- 
ness and  clear  the  annual  calendars,  he  strenuously  objected, 
and  charged  them  with  deliberately  desiring  to  kill  him  with 
labor.  When  fifteen  cases  had  been  argued,  he  would  leave 
the  bench  and  take  no  part  in  the  balance.  He  even  went 
so  far  as  to  urge  his  friends  to  try  and  secure  the  passage 
of  a  law  making  the  opinion  of  the  Chief  Justice  prepon- 
derating and  decisive  on  all  questions. 

These  harassing  circumstances,  combined  with  the  un- 
remitting and  strenuous  intellectual  toil  of  the  bench,  were 


Enlargement  of  the  Bench  355 

enough  to  wear  upon  the  nerves  of  the  strongest  man. 
Judge  Lyon,  however,  was  happily  endowed  with  an  even 
temper,  and  he  and  Judge  Cole  calmly  performed  their 
multiplying  duties  without  complaint. 

An  instance  of  the  kind  of  difficulties  which  these  two 
men  had  to  meet  during  these  years  was  related  to  the 
writer  by  Judge  Lyon  many  years  after,  and  may,  with  no 
breach  of  propriety,  be  repeated  here.  Judge  Ryan  had  at 
one  time  a  great  grievance  against  John  Bascom,  the  great 
president  of  the  L^niversity  of  Wisconsin.  Both  men  were 
great  intellectually,  but  their  viewpoints  were  radically  dif- 
ferent. If  anyone  attacked  the  bench  or  bar,  Judge  Ryan 
was  ready  to  take  up  arms  in  defense  of  the  profession  im- 
mediately. In  a  baccalaureate  sermon  preached  at  the  Uni- 
versity (I  think  in  1876  or  1877),  President  Bascom  made 
some  strong  comments  upon  the  corruption  of  the  bench, 
as  shown  by  the  then  recent  disclosures  concerning  Judges 
Barnard  and  Cardozo  in  New  York.  Judge  Ryan  took  the 
remarks  as  a  denunciation  of  the  bench  in  general,  and  his 
indignation  took  fire  at  once,  and  he  determined  to  make  a 
scathing  reply  at  the  time  of  the  admission  to  the  bar  of  the 
graduates  of  the  law  school  a  few  days  later.  This  reply  he 
prepared  and  in  it  used  his  great  powers  of  sarcasm  and 
invective  remorselessly,  and  with  telling  effect.  On  reading 
it  to  Judges  Cole  and  Lyon  and  informing  them  of  his  in- 
tention, they  insisted  that  it  should  not  be  read  in  court. 
Judge  Ryan  stormed  and  insisted  that  he  would  read  it  de- 
spite their  protests.  They  told  him  that  if  he  commenced 
to  read  it  they  would  direct  the  crier  to  adjourn  court,  and 
would  quit  the  bench,  thus  leaving  him  without  a  quorum. 
Judge  Lyon  was  a  man  who  would  go  far  to  avoid  an  un- 
pleasant clash,  but  if  he  was  convinced  that  duty  required 
him  to  take  a  given  course  bluster  and  threats  had  no  effect 


356  The  Story  of  a  Great  Court 

upon  him.  Judge  Ryan  had  undoubtedly  become  aware  of 
this  fact ;  he  was  very  angry  and  none  knew  what  he  would 
do,  but  when  the  day  came  he  had  evidently  realized  the 
futility  of  his  intended  action  and  did  not  attempt  to  read 
the  paper.  It  was  preserved,  as  I  understand,  and  is  still 
in  existence,  and  is  said  to  be  a  literary  masterpiece. 

It  was  becoming  more  apparent  every  year  that  the  bench 
must  be  enlarged  or  it  would  be  overwhelmed  with  labor, 
and  in  November,  1877,  a  constitutional  amendment  was 
ratified  by  the  people,  increasing  the  number  of  judges  upon 
the  Supreme  bench  from  three  to  five,  and  fixing  the  length 
of  their  terms  at  ten  years  instead  of  six. 

In  the  winter  of  1878  legislative  caucuses  were  held  by 
both  parties,  and  finally  it  was  arranged  that  David  Taylor 
of  Fond  du  Lac,  a  Republican,  and  Harlow  S.  Orton  of 
Madison,  a  Democrat,  should  stand  together  as  non-partisan 
candidates  for  the  two  new  places  on  the  bench.  The  ar- 
rangement was  unanimously  ratified  by  the  people,  and  the 
two  men  were  elected  without  opposition  early  in  April, 
1878,  and  commenced  their  duties  on  the  eighteenth  of  the 
same  month. 

They  were  each  sixty  years  of  age,  but  both  were  men  of 
strong  physique  and  both  had  been  lawyers  of  the  highest 
standing  in  the  state  for  many  years.  It  may  well  be  imag- 
ined that  their  coming  was  hailed  with  unfeigned  relief  by 
the  two  judges  who  had  been  carrying  so  heavy  a  load  for 
years. 

This  increase  in  the  number  of  judges  greatly  minimized 
the  embarrassment  resulting  from  Judge  Ryan's  uncertain- 
ties of  health  and  temper,  and  from  this  time  forward  the 
business  of  the  Court,  though  large  in  volume,  was  carried 
on  with  comparative  ease. 


Enlargement  of  the  Bench  357 

From  the  very  earliest  days  of  the  state  Harlow  S.  Orton 
had  been  a  commanding  figure,  both  at  the  bar  and  upon 
the  political  rostrum.  He  had  held  his  own  in  intellectual, 
legal  and  forensic  combats  with  such  men  as  Ryan,  Whiton, 
Arnold,  the  two  Strongs,  John  W.  Cary,  Matt.  H.  Carpen- 
ter, and  with  practically  all  of  the  legal  giants  of  that  period. 
There  was  no  question  as  to  his  abilities,  although,  as  in  the 
case  of  Ryan,  there  was  some  doubt  whether  they  were  of 
the  highest  judicial  quality.  His  lifelong  friend  and  long 
time  partner  in  the  profession,  Judge  E.  W.  Keyes,  gave  the 
following  brief  summary  of  his  life  and  estimate  of  his 
character  at  the  time  of  the  presentation  of  the  memorial 
of  the  bar  to  the  Supreme  Court  after  Judge  Orton's  death 

in  1895  :x 

"Judge  Orton  was  born  in  Niagara  County,  New  York,  Novem- 
ber 23,  1817.  His  father,  Harlow  N.  Orton,  M.  D.,  was  a  native 
of  Vermont,  and  his  mother,  Grace  Orton,  nee  Marsh,  was  born 
nTConnecticut.  His  paternal  ancestors  migrated  from  England 
in  the  middle  of  the  18th  century,  and  his  maternal  progenitors 
were  of  the  early  Puritans  of  New  England.  The  members  of 
both  branches  of  the  family  were  enlisted  in  the  service  of  the 
Revolutionary  war.  Both  of  his  grandfathers  were  Baptist 
clergymen,  who  shouldered  muskets  and  fought  for  liberty  and 
independence. 

"Judge  Orton  was  educated  first  at  the  common  schools,  and 
later  at  the  Hamilton  academy  and  Madison  University  in  his 
native  state,  receiving  at  the  latter  institution  his  degree  of 
graduation.  Upon  leaving  the  university  he  became  a  school 
teacher  in  Kentucky,  and  while  thus  engaged,  in  1837,  he  began 
the  study  of  law.  In  the  same  year  he  left  Kentucky  to  join  his 
brother,  Myron  H.  Orton,  late  of  this  city,  but  now  deceased,  who 
was  then  practicing  law  in  La  Porte,  Indiana.  At  this  place,  in 
1838,  he  was  admitted  to  the  bar,  and  began  to  practice  in  the 
northern  Indiana  circuit.  He  became  deeply  interested  in  the 
political  campaign  of  the  year  1840,  and  he  was  enlisted  into  the 
service  as  a  speaker  in  several  of  the  states  of  the  Union,  making 


1  90  Wis.  p.  xxxii. 


358  The  Story  of  a  Great  Court 

nearly  one  hundred  speeches  advocating  the  election  of  General 
tfarrison.  In  1843  he  was  appointed  probate  judge  of  Porter 
county  by  the  governor  of  Indiana.  In  1847  he  moved  to  the  ter- 
ritory of  Wisconsin,  and  commenced  the  practice  of  law  in  Mil- 
waukee. 

"In  1852  he  became  private  secretary  and  legal  adviser  of  Gov- 
ernor L.  J.  Farwell,  and  moved  to  Madison,  his  last  residence.  In 
1854  he  represented  the  Madison  district  in  the  assembly  of  the 
state.  In  1859  he  was  elected  judge  of  the  Ninth  judicial  cir- 
cuit, and  re-elected  without  opposition.  He  resigned  that  office 
in  1865  and  resumed  the  general  practice  of  his  profession.     In 

1869  he  was  again  elected  to  the  legislature,  and  was  re-elected 
in  1871.  In  1876  he  was  the  candidate  of  his  party  for  Congress, 
but  was  defeated  in  a  Republican  district  by  a  few  votes.  In  the 
same  year  he  was  appointed  one  of  the  revisers  of  the  statutes 
of  the  state.  From  1869  to  1874  Judge  Orton  was  dean  of  the 
law  faculty  of  the  university,  and  during  his  term  of  service  as 
dean  the  degree  of  LL.  D.  was  conferred  upon  him.  In  1877  he 
was  elected  mayor  of  Madison,  and  he  served  one  term.     From 

1870  to  1878,  the  time  of  his  election  as  justice,  he  was  the  senior 
in  the  law  firm  of  Orton,  Keyes  &  Chynoweth.     *     *     * 

"Politically,  Chief  Justice  Orton  affiliated  with  the  Whig  party 
until  1854,  since  then  he  has  been  an  independent  Democrat,  but 
he  never  identified  himself  with  politics  while  on  the  bench,  and 
never  allowed  his  decisions  to  be  affected  by  partisan  lines. 

"Judge  Orton  has  always  taken  a  deep  interest  in  history,  lit- 
erature, and  art.  He  aided  in  the  organization  of  the  Wisconsin 
State  Historical  Society,  and  was  vice-president  for  many  years, 
having  declined  the  presidency.  He  was  also  for  a  long  time  ac- 
tively indentified,  as  a  member,  with  the  Wisconsin  Academy  of 
Sciences,  Arts  and  Letters.     *     *     * 

"Judge  Orton  was  a  remarkable  man;  he  possessed  a  high  or- 
der of  talent  and  ability.  But  in  the  first  place  I  wish  to  speak 
briefly  of  those  qualities  which  found  expression  as  a  friend  and 
neighbor,  in  the  everyday  walks  of  life.  In  his  intercourse  with 
the  people  of  every  class  he  was  gentle,  sympathetic,  and  kindly, 
and  he  was  gallant  and  courteous  in  a  strong  degree.  His  radiant 
smiles  and  his  ringing  cheery  voice  were  in  themselves  mediums 
of  encouragement  and  hope  to  all  Who  came  within  the  circle  of 
his  presence.  He  was  natural  and  true,  the  same  yesterday  and 
today;  and  his  genial  manners,  wherever  he  might  be,  were  as 
a  ray  of  sunlight  to  clear  away  the  clouds.     His  demeanor  was 


™ 


HARLOW  S.  ORTOX. 


Enlargement  of  the  Bench  359 

peculiar  to  himself.  He  was  fashioned  in  a  mold  of  his  own; 
there  was  no  one  like  him.  His  geniality  was  proverbial.  He 
was  a  born  actor,  and  in  his  style  there  was  evidence  at  times  of 
the  natural  attributes  of  tragedy  and  comedy.  In  his  step  he 
was  light  and  active;  his  movements  were  graceful  and  dignified; 
and  he  ever  evoked,  in  his  personal  presence,  the  admiration  of 
those  with  whom  he  came  in  contact.  He  was  democratic  in  the 
highest  and  truest  sense  of  the  word;  he  was  emphatically  one 
of  the  people.  His  feelings  and  sympathies  went  out  strongly 
and  in  no  mistaken  terms  in  behalf  of  the  poor,  the  suffering,  and 
the  downtrodden,  as  against  injustice  and  oppression  in  whatever 
form  they  might  appear.  As  he  was  always  ready  to  lend  a 
helping  hand  to  relieve  the  distressed,  to  strengthen  the  weak, 
and  to  give  words  of  hope  and  encouragement  to  those  who  were 
respondent  and  in  trouble.  These  noble  and  manly  qualities  so 
characteristic  of  Judge  Orton,  were  given  manifestation,  in  a 
greater  or  less  degree,  every  day  of  his  life.  His  greetings  to 
friends  and  neighbors  were  cordial,  sincere,  and  came  from  the 
heart.  The  magnetism  of  his  presence,  the  shake  of  his  hand, 
would  seem  to  impart  his  own  impulses  and  to  gladden  the  heart 
with  pleasure  almost  unaccountable.  The  manner  of  his  inter- 
course with  his  fellow  men,  of  high  or  low  degree,  was  always 
the  same,  prompt,  cordial,  and  genuine.  There  was  no  selfish- 
ness in  it.  He  sought  not  to  ply  the  arts  of  the  intriguer  or 
politician,  to  reap  benefits  therefrom.  It  was  all  spontaneous 
with  him,  the  natural  outpouring  of  his  sincere  and  generous 
nature. 

"While,  at  times,  he  seemed  inexorable  in  his  ideas  of  pro- 
priety, justice,  and  right,  and  perhaps  was  subject  to  the  charge 
of  severity,  still  he  was  always  reasonable  and  ready  to  modify 
his  views  and  opinions,  of  a  personal  or  general  nature,  to  cor- 
respond with  those  of  his  friends  and  associates,  when  such 
modification  required  no  sacrifice  of  principle.  He  was  a  man 
of  firm  and  lasting  friendships,  true  as  the  needle  to  the  pole, 
and  while  he  was  inapt  to  be  presumptuous  or  to  crowd  himself 
forward  in  his  associations  with  others,  yet  he  enjoyed  in  a  high 
degree  close  and  intimate  companionship. 

"It  is  true,  however,  that  he  lived  much  within  himself,  keep- 
ing closely  within  the  family  circle,  and  was  disinclined  to  so- 
ciety in  its  ordinary  course.  Still  his  sociability  and  fraternity 
were  strongly  developed  and  cultivated  by  him  on  all  possible  oc- 
casions. 


360  The  Story  of  a  Great  Court 

"Judge  Orton  had  a  high  sense  of  honor.  He  could  not  toler- 
ate a  mean  or  dishonest  action  in  any  one,  and  when  knowledge 
of  such  conduct  came  to  him  he  would  denounce  it  in  language 
forcible  and  strongly  condemnatory." 

On  the  same  occasion  ex-Chief  Justice  Cole  paid  a  tribute 
to  him,  from  which  I  extract  the  following : 

"I  think  I  became  acquainted  with  Judge  Orton  in  the  winter 
of  1854.  I  well  remember  the  first  argument  I  ever  heard  him 
make  in  court.  It  made  a  deep  impression  on  my  mind.  It  was 
before  his  court  in  the  case  of  Veeder  v.  Guppy,  reported  in  the 
3rd  Wisconsin.  The  case  was  one  which  excited  much  interest 
and  public  feeling  in  the  neighboring  county  of  Columbia,  and 
was  hotly  contested.  Such  giants  in  the  profession  as  Judge 
Alexander  Stow  and  E.  G.  Ryan  were  engaged  in  the  cause  as 
opposing  counsel.  When  I  mention  that  fact,  it  will  be  sufficient 
evidence  to  every  lawyer  that  Judge  Orton's  intellectual  ability 
and  learning  in  his  profession  was  then  generally  recognized; 
otherwise,  he  would  not  have  been  called  upon  to  meet  such 
antagonists  in  an  important  cause. 

"From  that  day  to  the  time  he  left  the  practice  to  take  a  place 
on  the  bench  of  the  circuit  court,  and  subsequently  on  the  bench 
of  this  court,  he  maintained  his  position  in  the  front  rank  of 
the  profession,  and  was  justly  regarded  as  one  of  the  ablest  law- 
yers, and  of  the  most  eloquent  advocates  at  the  bar  in  this  state. 
He  had  a  large  practice  in  the  trial  courts  and  in  this  court.  And 
in  this  connection  I  may  add,  as  I  am  now  the  only  survivor  of 
ali  those  who  participated,  either  on  the  bench  or  at  the  bar,  in 
the  trial  and  decision  of  the  novel  and  somewhat  celebrated  case 
of  Bashford  v.  Barstoiv,  reported  in  the  4th  Wisconsin,  which,  it 
will  be  remembered,  was  a  contest  for  the  office  of  governor  of 
the  state  and  excited  intense  interest  and  strong  public  feelings, 
certainly  in  the  political  parties,  Judge  Orton  appeared  for  the 
defendant.  He  was  associated  with  such  eminent  and  accom- 
plished lawyers  as  Jonathan  E.  Arnold  and  Matt.  H.  Carpenter, 
but  the  burden  of  the  argument  upon  all  motions  and  questions 
of  law  arising  in  the  preliminary  proceeding  rested  mainly  upon 
the  shoulders  of  Judge  Orton,  who  seemed,  by  consent,  to  be 
given  the  management  of  the  cause  in  court.  The  questions  in- 
volved were  certainly  new, — I  might  say,  almost  of  first  impres- 
sion under  our  form  of  government.  They  could  not,  of  course, 
arise  under  any  other  form.  Judge  Orton  met  and  discussed 
these  questions   with   wonderful   learning   and   ability.     He   was 


Enlargement  of  the  Bench  361 

called  upon,  likewise,  to  discuss  them  often  on  the  spur  of  the 
moment,  without  any  time  for  reflection,  examination  of  the  au- 
thorities, or  even  to  make  preparation,  and  against  such  lawyers 
as  Judge  Timothy  0.  Howe  and  E.  G.  Ryan,  whose  supremacy  at 
the  bar  will  be  questioned  by  no  one.  But  Judge  Orton  was  not 
surpassed  by  any  lawyer  in  the  case  in  the  efforts  he  put  forth 
or  in  the  intellectual*  powers  he  exhibited.  His  clients  surely 
had  no  grounds  to  ccmplain  that  his  rights  and  interests  in  the 
litigation  had  not  been  well  and  fully  protected  and  presented  to 
the  court. 

"In  1859  Judge  Orton  was  appointed  judge  of  the  Ninth  circuit, 
to  fill  the  vacancy  created  by  the  resignation  of  Luther  S.  Dixon, 
who  was  then  commissioned  as  Chief  Justice  of  this  court.  Judge 
Orton  could  have  retained  his  place  on  the  bench  of  the  circuit 
court  indefinitely,  had  be  been  so  disposed,  for  he  had  made  a 
most  acceptable  judge,  but  he  declined  a  re-election  to  the  office 
and  resumed  the  practice. 

"As  an  advocate,  Judge  Orton  was  most  effective,  often  eloquent 
and  impassioned  as  a  speaker.  His  mind  was  clear,  logical,  and 
he  had  at  his  command  a  ready  flow  of  vigorous  language  to  ex- 
press his  ideas.  He  was  earnest  and  sincere  in  the  treatment  of 
all  subjects.  His  sensibilities  were  lively  and  always  excited  by 
any  act  of  fraud  or  injustice  which  he  was  called  upon  to  review; 
and  when  he  had  to  deal  with  such  cases,  which  sometimes  hap- 
pens to  every  lawyer  in  practice,  he  did  not  soften  his  denuncia- 
tions nor  spare  the  wrongdoers,  but  hurled  his  words  of  wrath 
and  sarcasm  with  pitiless  contempt  and  scorn.  Woe  to  the  man 
who  had  excited  his  indignation  by  any  base  and  dishonest  con- 
duct, for  he  was  sure  to  receive  a  castigation  in  words  which 
stung  like  the  whip  of  a  scorpion.  And  yet  he  could  and  did 
move  human  sympathies  and  excite  deep  emotion  and  tender  feel- 
ing, while  he  captivated  the  judgment  and  carried  away  the  un- 
derstanding of  his  hearers  by  his  appeals.  But  enough  will  have 
been  said  on  this  point  when  I  add,  he  was  a  most  effective 
speaker,  and  by  the  enthusiasm  of  his  temper  and  magnetism  of 
his  manner  he  had  great  power  and  influence  over  courts  and 
juries." 

The  personality  of  Harlow  S.  Orton  was  one  of  the  most 
picturesque  of  any  among  a  bar  that  was  crowded  with 
picturesque  characters.  Many  interesting  anecdotes  have 
been  related  of  him,  but  unfortunately  most  of  them  have 
been  lost. 


362  The  Story  of  a  Great  Court 

Col.  J.  A.  Watrous,  of  Milwaukee,  vouches  for  the  two 
following  anecdotes : 

"In  early  life  Judge  Orton  studied  law  and  was  admitted  to 
practice  in  Indiana.  For  some  reason  he  gave  up  the  law  for 
the  ministry,  and  was  the  popular  pastor  of  a  Baptist  church, 
being  known  as  the  boy  preacher.  An  unpleasant  dispute  be- 
tween two  of  his  church  officers  had  a  bad  effect  upon  the  pastor. 
He  called  the  officials  together  and  tendered  his  resignation. 
The  officials  took  the  matter  under  consideration,  and  decided 
that  they  could  not  spare  so  eloquent  and  popular  a  minister. 

"  'Well,  brethren,'  said  the  future  chief  justice,  'your  determin- 
ation is  a  great  disappointment  to  me,  for  I  have  a  strong  desire 
to  return  to  law  practice.  However,  I  suppose  I  must  remain 
your  pastor,  but  it  is  too  damn  bad.' 

"The  brethren  consulted  again  and  concluded  that  it  was  best 
to  let  him  go,  and  not  long  after  that  he  started  for  Wisconsin. 

"It  was  a  day  in  1848,  the  year  that  'old  rough  and  ready' 
General  Zach  Taylor  was  the  whig  and  Lewis  Cass  of  Detroit 
the  democratic  candidate  for  president,  that  the  discredited  boy 
preacher  and  ambitious  lawyer  took  passage  on  a  boat  at  Chi- 
cago for  Milwaukee.  At  Racine  a  peace  officer  and  three  men 
stepped  on  board.  The  sheriff,  as  Orton  learned,  was  in  charge 
of  a  minister,  and  was  taking  him  to  Port  Washington  where 
he  had  formerly  lived,  for  trial,  and  the  two  business  men,  Hor- 
ace T.  Sanders  and  a  Mr.  Brown,  were  going  along  to  see  that 
the  elder  had  a  square  deal.  The  Indiana  lawyer  joined  the 
party,  and  when  he  learned  the  particulars,  tendered  his  services 
to  defend  the  elder.  Sanders,  who  seemed  to  be  the  leader, 
gladly  accepted,  and  the  plan  of  battle  was  made. 

"The  prisoner  and  his  two  friends  were  to  obey  the  lawyer's 
orders  without  questioning.  In  passing  let  me  say  that  Sanders 
afterwards  became  a  lawyer,  was  a  state  senator  and  in  the  civil 
war  led  a  Wisconsin  regiment  and  became  a  brevet  brigadier 
general. 

"A  large  crowd  was  waiting  for  the  sheriff  and  his  prisoner 
when  the  boat  landed  at  Port  Washington.  The  court  room  was 
crowded  when  the  justice  of  the  peace  opened  court.  Lawyer  Or- 
ton took  charge  of  the  case  for  the  defendant  and  at  once  showed 
such  skill  and  vigor  that  he  quickly  had  matters  moving.  It  was 
made  plain  to  him,  however,  that  the  people  were  strongly  preju- 
diced against  the  elder,  and  that  the  justice  of  the  peace  was  in 
strong  sympathy    with    them.      Evidence    that  should  not  have 


Enlargement  of  the  Bench  363 

been  received  was  stoutly  objected  to  by  Orton,  but  the  justice 
overruled  him  again  and  again.  That  angered  the  boy  preacher 
and  after  an  exceptionally  outrageous  decision,  Orton  sprang  to 
his  feet,  and  pointing  a  finger  at  the  justice,  said  in  a  loud  tone: 

'You    are    a    d d    scoundrel,'    and    whirling    around    caught 

the  preacher  by  the  shoulder  and  said,  'Come  on  elder.  You 
can't  get  justice  in  this  court/  and  led  the  way  to  the  door. 
Sanders,  a  giant  in  size,  fell  in  behind  the  preacher-prisoner  and 
Brown  behind  him,  and  they  forced  their  way  through  the  ex- 
cited crowd.  They  rushed  to  the  hotel.  Orton  hurried  the  pris- 
oner into  a  bedroom,  locked  him  in  and  pocketed  the  key. 

"By  this  time  the  sheriff  had  begun  to  take  notice.  He  met 
Orton  on  the  stairs  and  demanded  his  prisoner. 

"  'You  have  no  prisoner,  there  is  no  case  against  him,  and  if 
you  don't  mind  what  you  are  at  I  will  have  you  on  the  way  to 
the  penitentiary.' 

"That  alarmed  the  sheriff  and  he  returned  to  the  justice  for 
new  orders.  The  court  had  been  so  frustrated  by  being  called  a 
'd d  scoundrel'  that  he  didn't  know  what  to  do. 

"Orton,  Sanders  and  Brown,  fearing  an  attempt  to  recapture 
the  elder,  turned  their  attention  to  amusing  the  crowd.  Sanders 
smoked  two  large-sized  cigars  at  a  time,  Orton  made  funny 
speeches,  and  Brown  was  the  contortionist.  The  assemblage 
mellowed,  got  to  laughing  and  seemed  to  forget  their  thirst  for 
the  preacher's  recapture. 

"  'The  steamboat  cometh,'  shouted  Sanders,  and  the  crowd 
laughed  again.  Just  as  the  steamer  from  Sheboygan  was  close 
to  the  dock,  Orton  dodged  back  to  the  hotel,  caught  his  client  by 
the  arm,  rushed  him  down  the  back  way  on  a  hot  run  and  fairly 
threw  him  onto  the  boat,  in  spite  of  the  sheriff's  efforts  to  pre- 
vent it. 

"Court  adjourned  and  watched  the  steamer  bear  away  the  elder 
and  his  rescuers.  The  case  was  dropped  and  the  minister  com- 
pleted his  year  as  pastor  of  the  Racine  church. 

"Twenty  years  after  that  the  Port  Washington  justice  and 
Judge  Orton  were  members  of  the  assembly  and  sat  at  adjoining 
tables.  The  judge  did  not  recognize  the  dignitary  before  whom 
he  had  tried  and  won  his  first  case  in  Wisconsin,  and  the  justice 
was  content  to  remain  silent  on  the  subject." 

It  seems  very  certain  that  Judge  <  >rton  was  one  of  the 
most  eloquent  and  convincing  jury  lawyers  whom  the  state 
has  ever  seen;  I  never  had  the  good  fortune  to  hear  him 


364  The  Story  of  a  Great  Court 

upon  such  an  occasion,  but  the  testimony  to  that  effect  is 
so  uniform  and  overwhelming  coming  from  those  who  did 
hear  him  that  there  can  be  no  doubt  of  it. 

In  1875,  when  I  was  about  to  graduate  from  the  Univer- 
sity law  school  at  Madison,  the  class  after  much  discussion 
decided  to  ask  Judge  Orton  (then  a  practicing  lawyer)  to 
deliver  the  commencement  address ;  Philip  L.  Spooner 
(father  of  ex-Senator  Spooner)  was  then  Dean  of  the  law 
school,  and  when  we  told  him  of  our  choice,  he  said  with 
that  grave  and  gentle  air  which  endeared  him  to  all  of  us, 
"Why  of  course,  that's  all  right,  Harlow  was  born  with  an 
oration  in  his  mouth." 

Apropos  of  this  address,  another  story  comes  to  me. 
Judge  Orton  readily  consented  to  deliver  it,  and  while  I 
cannot  remember  its  title,  I  remember  very  well  that  it  dwelt 
eloquently  upon  the  great  achievements  of  the  bar  of  the 
past,  in  the  endeavor  doubtless  to  imbue  our  minds  with  the 
nobility  of  the  profession.  On  the  following  day  I  over- 
heard two  men  discussing  the  speech  who  were  evidently 
business  men  who  had  been  in  attendance  on  the  commence- 
ment exercises.  One  said  to  the  other,  "Well,  what  did  you 
think  of  Orton's  address?"  and  the  other  replied,  "It  was  a 
fine  speech.  I  must  say,  however,  that  I  had  always  sup- 
posed that  the  Almighty  had  considerable  to  do  with  the 
management  of  the  universe,  but  it  seems  now  that  I  have 
been  mistaken,  and  that  the  lawyers  have  always  done  it 
all." 

David  Taylor  was  a  man  cast  in  very  different  mold  from 
that  of  Harlow  S.  Orton,  but  he  had  been  a  no  less  distin- 
guished figure  in  the  state  and  territory  since  his  arrival  at 
Sheboygan  in  1846. 

Not  a  natural  orator  as  Orton  was,  but  a  prodigious 
worker,  a  man  capable  of  almost  endless  hard  labor,  he  more 


Enlargement  of  the  Bench  365 

than  made  up  in  the  solid  qualities  of  good  judgment,  in- 
dustry and  calm  study  what  he  lacked  in  brilliancy. 

His  life  was  thus  sketched  by  the  committee  who  pre- 
sented the  memorial  to  the  Supreme  Court  after  his  death 
in  1891 : 

"David  Taylor  was  born  at  Carlisle,  Schoharie  county,  in  the 
state  of  New  York,  on  March  11,  1818.  On  his  father's  side  he 
was  of  Irish  ancestry,  on  the  mother's  of  Dutch  descent.  He 
graduated  from  Union  College  in  1841,  and  was  admitted  to  the 
bar  at  Cobleskill,  N.  Y.,  in  1844.  After  two  years  of  practice 
here,  he  turned  his  face  to  the  opening  west,  and  in  February, 
1846,  came  to  the  territory  of  Wisconsin.  He  visited  Milwaukee 
and  Green  Bay,  but  chose  Sheboygan  as  his  resting  place,  and 
there  formed  a  law  partnership  with  Cyrus  P.  Hiller,  in  July  of 
that  year.  The  copartnership  of  Taylor  &  Hiller  continued  until 
Judge  Taylor's  elevation  to  the  circuit  bench.  It  enjoyed  a  large 
practice,  extending  over  a  wide  section  of  the  state,  which  was 
chiefly  conducted  by  Judge  Taylor.  During  these  years  he  was 
also  an  active  leader  in  politics;  originally  as  a  Whig;  after  its 
organization  as  an  ardent  supporter  of  the  Republican  party.  He 
was  a  member  of  the  assembly  in  1853,  of  the  state  senate  in  1855 
and  1836,  and  again  in  1869-1870,  always  a  recognized  leader  in 
legislative  work. 

"He  developed  strong  elements  as  a  lawyer.  Well  equipped 
in  the  learning  of  his  profession,  his  very  great  industry,  his 
untiring  energy,  his  clear  and  robust  judgment  made  him  a 
strong  man  at  the  bar. 

"In  1857  he  was  called  to  the  bench.  He  was  appointed  judge 
of  the  fourth  judicial  circuit  to  fill  the  vacancy  caused  by  the 
resignation  of  Judge  William  R.  Gorsline.  At  the  next  election, 
he  was  chosen  to  fill  the  full  unexpired  term.  Upon  its  expira- 
tion he  was  elected  again,  so  that  he  served  as  circuit  judge  until 
January  1,  1869.  These  terms  covered  an  important  period  in 
the  growth  of  the  state,  especially  in  juridical  affairs.  They 
concluded  the  trying  time  of  war,  when  many  new  and  most 
important  questions  were  brought  before  the  courts,  and  Judge 
Taylor  earned  wide  reputation  for  judicial  ability. 

"Retiring  from  the  bench,  he  resumed  the  practice  of  his  pro- 
fession at  Sheboygan.  In  1872  he  removed  to  Fond  du  Lac, 
where  he  entered  into  partnership  with  the  late  J.  M.  Gillet,  and 
subsequently   with   George  E.   Sutherland.     He  was  in   constant. 


366  The  Story  of  a  Great  Court 

active  practice;  but  did  not  allow  the  causes  of  his  clients  to 
monopolize  his  time.  His  natural  patient  industry  made  him  a 
most  valuable  compiler  of  laws.  He  had  already  shown  his  abil- 
ity and  skill  in  this  direction  as  one  of  the  revisers  who  brought 
out  the  Revised  Statutes  of  1858.  In  1871  he  gave  to  the  profes- 
sion the  much-needed,  excellent  compilation  of  all  our  public 
statute  law,  with  valuable  annotations,  which  became  known  by 
the  name  of  'Taylor's  Statutes.'  It  was  but  natural  that  when 
the  state  undertook  another  revision  Judge  Taylor  became  one 
of  the  revising  commission  appointed  by  this  court,  and  was 
made  its  president.  This  commission  produced  the  Revised  Stat- 
utes of  1878." 

Upon  the  same  occasion  William  F.  Vilas  gave  an  elo- 
quent estimate  of  his  abilities  and  character,  from  which  I 
take  the  following: 

"Judge  Taylor's  most  distinguishing  peculiarity,  which  gov- 
erned and  explained  his  career,  his  general  conduct  and  man- 
ners as  well  as  accomplishments,  was  the  constancy  and  inten- 
sity of  his  devotion  to  the  labors  of  the  law.  No  man  within  my 
range  of  observation  ever  gave  himself  more  exclusively,  so  un- 
ceasingly and  untiringly,  to  this  single  field  of  thought  and 
effort.  Whatever  other  studies  may  have  engaged  his  care,  if 
any  ever  did  for  much  time,  he  manifested  in  his  later  years 
little  interest  in  them.  Beyond  a  passing  attention  to  the  cur- 
rent affairs  of  the  country  and  topics  of  the  day,  of  which  in- 
formation came  easily,  he  never  seemed  to  yield  himself  or  his 
thoughts  at  length. 

"But  to  the  law  he  addressed  a  capacity  for  labor  unexcelled 
and  rarely  equalled,  with  a  constancy  as  faithful  as  his  capacity 
was  great.  He  seemed  never  weary,  never  wistful  to  interrupt 
the  calm,  steady,  unremitting  assiduity  of  his  toil.  The  magni- 
tude of  effort  to  understand  or  elucidate  any  subject  under  his 
hand,  the  measure  of  time  or  personal  labor,  was  no  considera- 
tion with  him.  No  task  was  formidable  to  his  simple  steadfast- 
ness. Through  all  the  hours  of  the  day,  day  after  day,  week  in 
and  week  out,  year  upon  year,  without  excitement  and  without 
ceasing,  he  bent  his  mind  to  the  tasks,  before  him,  toiling  on  with 
each  to  its  complete  and  satisfactory  accomplishment,  and  enter- 
ing upon  the  next  as  readily  as  he  finished  that  in  hand.  Re- 
laxation and  recreation  were  nothing  to  him.  Seemingly  he 
never  desired  either;  holidays  and  vacations  were  merely  inter- 
ruptions.    The  pleasures  and   enjoyments  which  others  indulge 


DAVID   TAYLOR. 


Enlargement  of  the  Bench  367 

and  seek,  games,  pastimes,  entertainments,  had  no  apparent 
charm;  and  if  he  suffered  them  to  check  his  labor,  it  was  rather 
from  a  consideration  of  others  than  to  please  himself.  He  was, 
therefore,  essentially  a  contemplative  man,  his  mind  ever  medi- 
tating his  problem,  the  intellectual  machinery  always  running, 
always  grinding  its  grist.  His  thought  was  ever  introverted;  his 
attention  occupied  by  that  within  him,  not  by  things  without. 
Incidents  external  were  rather  a  hinderance  than  a  help;  inter- 
ruptions, not  attractions. 

"Necessarily,  his  were  the  manners  of  a  pre-occupied  man. 
Yet  such  was  his  composure  of  countenance  that  his  introspec- 
tion was  commonly  not  apparent  to  the  ordinary  observer,  and 
when  he  passed  with  slight  notice  a  friend  or  acquaintance,  it 
happened  not  infrequently  that  the  reason  for  it  was  denied  the 
credit  due.  But  it  needed  only  to  enter  the  chambers  of  his 
mind  and  witness  the  busy  scene  within,  to  understand  the  sub- 
jects and  the  methods  of  his  thought,  in  order  to  dissipate  utterly 
the  superficial  misconception.  Once  in  appreciative  communion 
with  him,  the  perception  was  instant  and  easy  of  simplicity  and 
sincerity  of  purpose,  of  patient  effort  to  discern  and  unfold  the 
right,  of  sympathy  with  the  interests  and  concerns  of  men,  and 
the  utmost  readiness  to  accept  any  aid  or  criticism  which 
helped  him  to  solution  of  the  doubt  he  wrestled  with,  or  unfolded 
the  true  course  of  thought.  Any  man  more  free  of  the  mere 
pride  of  personal  opinion,  less  impatient  of  correction,  more 
ready  to  receive  any  benefit  of  another's  thought,  so  that  it  truly 
informed  his  own,  I  never  encountered.  In  performance  of  the 
public  duty  already  mentioned — to  which  we  were  called  by  ap- 
pointment of  this  court — it  happened  that  he  and  I  wrought 
much  together,  in  a  close  co-operation,  not  only  on  important 
measures  of  the  law,  but  often  upon  words  and  phrases,  those 
stubborn  substantives  of  useful  statutes.  He  was  the  old,  well- 
stored  lawyer,  surcharged  with  a  life  of  study,  long  professional 
and  judicial  service,  and  specially  expert  in  statutory  knowledge, 
as  one  of  the  revisers  of  twenty  years  before  and  the  compiler 
of  a  later  edition  which  had  long  superseded  in  use  the  former 
work.  He  brought  to  the  undertaking  not  only  his  extraordinary 
ability  for  labor,  but  unusual  fulness  of  legal  learning  and  ripe- 
ness of  study.  Yet  the  just  precedence  of  these  circumstances 
he  never  manifested  in  anything  but  their  value  to  the  duty  be- 
fore* us.  In  every  moment  of  conference,  his  acceptance  was  as 
free  and  easy  as  his  contribution  of  everything,  in  every  form, 
whether  of  suggestion  or  of  criticism,  that  might  promote   the- 


368  The  Story  of  a  Great  Court 

utility  and  excellence  of  the  work  in  hand.  I  speak  now  to  his 
associates  of  many  years  in  judicial  labor;  but  confidently,  that 
your  testimony  may  be  invoked  to  superadd  in  more  effective 
tones  the  proof  of  these  marks  of  a  just,  strong,  honest-minded 
man,  too  great  and  too  generous,  too  simple  and  too  true,  to 
think  of  anything  but  the  worthy  end  of  legal  labor  in  its  high- 
est usefulness  to  men." 


Cole's  Last  Contest  369 

CHAPTER  XXVIII 

JUDGE   COLE'S   LAST   CONTEST 

Chief  Justice  Ryan  was  re-elected  unanimously  and  with- 
out opposition  in  1875,  and  Judge  Lyon  received  the  like 
compliment  in  1877.  From  these  facts  it  might  well  be  as- 
sured that  the  golden  age  had  arrived  when  sitting  judges, 
who  had  demonstrated  their  fitness  and  ability,  were  not  to 
be  opposed  by  partisan  nominations,  whatever  might  be  their 
political  views  or  their  decisions  upon  cases  arousing  public 
interest.  But  while  the  sentiment  in  favor  of  non-partisan- 
ship in  the  selection  of  judges  for  the  Supreme  bench  had 
unquestionably  developed  greatly,  as  evidenced  by  these 
elections,  it  was  not  yet  controlling. 

Jude  Cole's  term  was  nearing  its  end,  and  the  election  to 
choose  his  successor  was  to  take  place  in  April,  1879.  As 
has  been  seen,  the  Democrats  had  carried  the  state  in  1873, 
and  had  also  elected  the  entire  state  ticket,  except  Governor, 

in  1875.  Tney  had  lost  tne  state  °y  a  sma11  maiority onlv 

in  1876,  and,  while  they  had  lost  in  the  state  election  of  1877, 
they  were  still  aggressive  and  determined,  for  nationally 
the  party  was  in  excellent  conditon ;  it  controlled  the  popular 
house  all  through  the  administration  of  President  Hayes, 
and  had  small  majorities  in  both  senate  and  house  in  1878 
and  1879. 

Thus  everything  seemed  encouraging  to  "the  hope  that 
springs  eternal"  in  the  Democratic  breast,  and  as  the  end 
of  Judge  Cole's  term  approached,  the  Democratic  leaders, 
with  an  invincible  bourbonism  worthy  of  a  better  cause,  de- 
termined to  put  up  a  candidate  against  him,  and  make  an- 
24 


370  The  Story  of  a  Great  Court 

other  supreme  effort  to  obtain  control  of  the  bench.  Their 
deliberations  resulted  in  the  determination  that  Judge  Coth- 
ren  must  again,  and  for  the  third  time,  be  led  to  political 
slaughter  and,  in  sooth,  Judge  Cothren  seems  to  have  been 
a  willing  victim. 

On  the  evening  of  February  19,  1879,  a  caucus  composed 
of  Democratic  members  of  the  legislature  and  a  number  of 
members  of  the  Democratic  State  Central  Committee  was 
held  in  Madison,  at  which  Senator  Thomas  R.  Hudd  of 
Green  Bay  was  elected  chairman.  A.  R.  Bushnell,  J.  H. 
Earnest,  and  Matt  Anderson  made  speeches  favoring  the 
nomination  of  Judge  Cothren.  Chairman  Hudd  made  an 
argument  in  favor  of  supporting  Judge  Cole,  who  it  was 
known  would  be  an  independent  candidate.  Mr.  Hudd's 
argument,  however,  found  little  favor  with  the  caucus,  and 
a  resolution  was  adopted  requesting  Judge  Cothren  to  be- 
come a  candidate  for  the  place,  and  recommending  that  the 
State  Central  Committee  formally  place  him  in  the  field  as 
the  Democratic  candidate. 

In  response  to  this  resolution,  the  Democratic  State  Cen- 
tral Committee,  on  the  27th  of  February,  issued  a  brief  ad- 
dress to  the  people,  signed  by  Joseph  Rankin  of  Manitowoc 
as  chairman,  reciting  the  passage  of  the  resolution  of  the 
caucus,  giving  a  brief  sketch  of  Judge  Cothren's  career,  and 
formally  presenting  him  to  the  people  as  a  candidate  for  the 
position,  requesting  "that  our  friends  everywhere  use  all 
honorable  means  to  secure  his  triumphant  election."  *  This 
nomination  was  accepted  by  Judge  Cothren  a  few  days  later, 
and  he  made  a  trip  through  a  considerable  section  of  the 
state  in  the  interest  of  his  canvass. 

At  about  the  same  time  that  the  caucus  before  mentioned 
was  held,  calls  began  to  be  extensively  circulated  among  the 


]  Madison  Democrat,  Feb.  27,  1879. 


Cole's  Last  Contest  371 

bar  of  the  state,  requesting  Judge  Cole  to  run  as  non- 
partisan candidate.  These  calls  were  very  generally  signed 
by  Democrats  as  well  as  by  Republicans,  and  one  hundred 
and  five  members  of  the  legislature,  including  twenty  Demo- 
cratic members,  signed  Judge  Cole's  call. 

No  nomination  was  made  by  the  Republicans,  either  in 
caucus  or  convention,  and  so  the  contest  became  one  be- 
tween an  independent  candidate  and  a  party  nominee. 

As  a  matter  of  fact,  the  so-called  nomination  of  Judge 
Cothren  was  not  a  real  nomination,  but  only  the  work  of  a 
self-appointed  coterie  of  politicians,  who  did  not  really  rep- 
resent the  party.  There  was  clearly  no  desire  on  the  part  of 
the  party  generally  to  enter  on  any  campaign  against  Judge 
Cole.  It  was  quite  well  known  that  Judge  Cole  did  not 
sympathize  with  the  ruling  wing  of  the  Republican  party  ; 
it  was  said  that  he  had  not  been  at  all  pleased  with  the  man- 
agement of  the  party  for  years.  Quite  a  number  of  Demo- 
cratic papers  through  the  state  actively  supported  Judge 
Cole,  and  others  refused  to  support  Judge  Cothren.  As  for 
the  bar,  the  great  majority  in  all  parts  of  the  state,  except 
perhaps  in  Judge  Cothren's  old  circuit,  supported  Judge 
Cole.  At  Racine,  where  the  writer  was  then  practicing,  the 
entire  bar,  with  the  exception  of  one  firm,  supported  Judge 
Cole,  and  the  writer  well  remembers  that  he  spent  practically 
the  entire  day  in  attendance  at  the  polls  endeavoring  to  pro- 
cure votes  for  Judge  Cole. 

For  some  reason  not  particularly  obvious,  the  Milwaukee 
News,  then  the  leading  Democratic  paper  of  the  state,  made 
a  very  active  and  somewhat  bitter  campaign  against  Judge 
Cole.  Its  efforts  to  find  some  plausible  objections  against 
Judge  Cole  were  somewhat  amusing,  and  demonstrate  the 
scarcity  of  material  in  that  line. 


372  The  Story  of  a  Great  Court 

On  the  23rd  of  February,  the  News,  after  stating  the  re- 
sult of  the  legislative  caucus,  and  commenting  favorably  on 
Judge  Cothren's  ability  and  record,  says : 

"Judge  Cole  has  occupied  a  seat  on  the  bench  for  many  years; 
he  has  arrived  at  an  age  where  man's  perceptions  grow  dim,  and 
it  is  certainly  a  wise  measure  to  retire  him  and  seat  a  younger 
and  abler  man  in  his  place." 

The  great  age  of  Judge  Cole  troubled  the  News  exceed- 
ingly ;  on  the  26th  of  February  it  said  that  Judge  Cole  was 
the  candidate  of  the  Madison  Ring  or  Regency  and  that 

"He  has  been  on  the  bench  twenty-three  years,  and  in  all  that 
time  has  not  developed  such  an  immense  ability  that  he  should 
be  given  a  life  lease  of  the  position.  Judges  continued  long  in 
office  gradually  fall  into  a  rut  from  which  it  is  impossible  to 
rescue  them,  and  "when,  as  in  this  case,  a  candidate  like  Judge 
Cothren  is  presented  the  interests  of  the  people  will  be  more 
surely  served  by  electing  him  than  by  retaining  Judge  Cole." 

Again  on  the  4th  of  March  the  News  recurred  to  the  sub- 
ject of  age  and  said,  "He  is  an  old  man,  the  duties  are  be- 
coming irksome  to  him,  he  has  arrived  at  an  age  when 
United  States  Judges  are  retired  and  pensioned  off."  The 
length  of  Judge  Cole's  official  life  and  the  desirability  of 
rotation  in  office  were  almost  daily  urged  by  the  News  in  its 
editorial  columns. 

The  absurdity  of  these  arguments  based  on  Judge  Cole's 
great  age  and  supposed  waning  faculties  appears  very 
clearly  when  it  is  remembered  that  at  this  time  Judge  Cole 
was  fifty-nine  years  of  age,  in  excellent  health  physically 
and  mentally,  and  was  just  twenty-six  days  older  than  Judge 
Cothren. 

When  the  News  was  overhauled  by  the  Wisconsin  for  its 
wild  statements  about  Judge  Cole's  age,  it  developed  (as 
might  have  been  expected)  that  the  editors  knew  nothing 
about  Judge  Cole's  age,  for  it  then  said  in  the  issue  of  March 
8th  that  it  did  not  know  what  Judge  Cole's  age  was,  but  did 


Cole's  Last  Contest  373 

know  that  he  had  been  an  office  holder  for  thirty-two  years, 
with  but  slight  interruptions,  and  whether  he  were  sixty- 
seven  or  seventy-seven  he  should  retire  to  make  way  for  a 
new  man.  The  plain  implication  here  that  Judge  Cole  was 
at  least  sixty-seven  years  of  age,  when  he  was  in  fact  but 
fifty-nine,  might  well  be  called  dishonest  politics. 

In  1873  the  Court  had  met  the  question  whether  the 
"Graham"  liquor  law  2  was  constitutional  and  unanimously 
sustained  the  law,  Chief  Justice  Dixon  writing  the  opinion.3 
This  law  was  a  law  regulating  the  licensing  of  saloons  and 
sale  of  liquors  with  uniformity  over  the  whole  state,  and 
was  a  great  step  in  advance  from  the  point  of  view  of  tem- 
perance men. 

In  its  issue  of  March  2nd  the  News  very  adroitly  at- 
tempted to  turn  this  decision  to  the  advantage  of  Judge 
Cothren.  It  said  in  substance  that  Judge  Cole's  friends 
were  urging  his  election  among  temperance  men  for  the  rea- 
son that  he  was  sound  on  the  temperance  question,  because 
he  was  on  the  bench  and  participated  in  the  decision  sustain- 
ing the  "Graham"  liquor  law ;  that  it  did  not  believe  in 
criticizing  the  opinions  of  courts,  but  when  a  candidates's 
friends  make  political  capital  out  of  them  and  assure  voters 
that  the  judge  can  be  relied  on  in  the  same  direction  in  the 
future,  then  such  opinions  are  proper  subjects  of  criticism, 
and  persons  holding  opposite  views  are  justified  in  opposing 
the  candidate  on  account  of  their  belief  that  his  views  are 
erroneous. 

This  covert  attack  not  apparently  bringing  very  encourag- 
ing results,  the  News  on  March  12th  denounced  Judge  Cole 
as  the  lawyers'  candidate,  and  said  that  the  fact  that  he  was 
supported  by  the  lawyers  was  a  weighty  argument  for  his 


2  Chap.  127,  Laws  Wis.  1872. 

8  State  v.  Ludington,  33  Wis.  107. 


374  The  Story  of  a  Great  Court 

defeat,  for  lawyers  always  desired  a  slow  and  easy-going 
judge  so  as  to  protract  litigation,  while  clients  desired  a 
judge  who  dispatched  business  and  brought  the  lawyers  to 
time,  hence  the  people  should  vote  for  Cothren. 

This  appeal  to  popular  prejudices  against  lawyers  is  al- 
ways contemptible ;  sometimes,  however,  it  works,  but  it 
conspicuously  failed  in  the  present  instance. 

On  the  23rd  of  March  the  News  took  another  tack  and 
made  an  attempt  to  alienate  Judge  Cole's  Republican  sup- 
port. It  published  what  purported  to  be  special  correspond- 
ence from  Madison,  detailing  the  reasons  why  Judge  Cole 
was  not  acceptable  to  true  Republicans.  The  meat  of  the 
article  was  contained  in  a  story  circumstantially  told  con- 
cerning the  Carpenter  senatorial  deadlock  in  1875,  when 
fifteen  or  more  insurgent  Republicans  united  with  the  Demo- 
crats and  elected  Angus  Cameron  as  senator.  It  was  as- 
serted that  the  insurgents  and  Democrats  had  practically 
agreed  on  Cole  as  the  compromise  candidate  on  the  same 
evening  in  which  they  finally  agreed  on  Cameron ;  that  Cole 
was  informed  of  the  fact  and  prepared  a  speech  of  accept- 
ance to  be  made  before  the  joint  caucus ;  that  he  was  sent 
for  to  come  to  the  capitol  in  a  blinding  snowstorm  on  the 
night  in  question  and  came  with  his  speech  in  his  pocket, 
explaining  away  the  Graham  law  decision ;  that  he  waited 
for  two  hours  in  the  Attorney  General's  office ;  that  a  hitch 
occurred  in  the  caucus  negotiations  and  that  several  Mil- 
waukee German  members,  under  the  lead  of  Senator  Cotz- 
hausen  of  Milwaukee,  at  the  last  moment  refused  to  vote 
for  Cole  on  account  of  his  temperance  views,  and  so  the 
Judge  was  finally  compelled  to  go 'home  with  his  speech  un- 
delivered, and  Angus  Cameron  was  selected.  This  story 
was  denied  bv  the  Wisconsin. 


Cole's  Last  Contest  375 

The  Republican  papers  had  much  to  say  about  the  ad- 
vantages of  non-partisanship  in  judicial  elections,  and  to 
these  suggestions  the  News  replied  by  asking  how  many 
Democrats  had  been  appointed  to  judicial  offices  since  1861 
by  the  United  States  Government,  and  urged  every  Demo- 
crat to  stand  with  his  fellow  Democrats  and  cast  a  solid  vote 
for  Cothren,  a  true  Democrat,  and  a  worthy  man.  On  the 
28th  of  March,  it  said,  "Judge  Cothren  is  the  Democratic 
candidate.  Let  every  Democrat  vote  and  work  for  his  elec- 
tion." 

The  appeals  of  the  News,  however,  fell  on  deaf  ears ;  the 
Democrats  refused  to  consider  it  a  party  matter ;  in  a  total 
vote  of  168,605,  Judge  Cole's  majority  was  33,133. 

One  of  the  results  of  this  election  was  that  the  legislative 
caucus  as  a  judicial  nominating  body  followed  the  party 
convention  to  the  political  graveyard.  Henceforth  nomina- 
tions for  justices  of  the  Supreme  Court  were  to  be  made  by 
non-partisan  calls. 


376  The  Story  of  a  Great  Court 


CHAPTER  XXIX 
ryan's  later  days 

The  enlargement  of  the  bench  to  five  members  greatly 
lessened  the  heavy  burden  which  had  rested  upon  the  shoul- 
ders of  the  members  of  the  bench,  but  it  neither  improved 
Judge  Ryan's  temper  nor  his  health.  Though  he  was 
doubtless  of  strong  constitution  originally,  his  health  had 
not  been  good  for  some  years  before  his  elevation  to  the 
bench.  The  strenuousity  of  his  life  and  the  vehemence  of 
his  emotions  had  made  serious  inroads  on  his  strength  be- 
fore he  reached  the  bench,  and  after  that  time  he  was  fre- 
quently obliged  to  cease  work  for  a  time  on  account  of  tem- 
porary illness. 

Notwithstanding  their  radical  political  differences,  he  was 
personally  very  friendly  with  Elisha  W.  Keyes,  familiarly 
known  at  that  time  as  "Boss"  Keyes,  then  Postmaster  at 
Madison,  Chairman  of  the  Republican  State  Central  Com- 
mittee, and  unquestioned  ruler  of  the  party  in  the  state. 

During  the  winter  of  1876  and  1877  Judge  Ryan  was  fre- 
quently ill,  and  in  January  was  confined  to  his  house.  Mr. 
Keyes  called  on  him  from  time  to  time,  and  on  January  16, 
1877,  found  him  more  than  usually  depressed  ;  he  complained 
that  the  work  was  killing  him,  and  said  that  if  he  could  only 
have  a  vacation  of  a  few  months  he  might  throw  off  his 
physical  difficulties,  but  that  as  it  was  he  felt  that  he  should 
soon  die  or  be  compelled  to  resign.  Mr.  Keyes  tried  to 
cheer  him  up  as  best  he  could,  and  finally  told  him  that  the 
legislature  (which  was  then  in  session)  would  willingly 
grant  him  a  vacation,  if  informed  of  the  situation.     Judge 


Ryan's  Later  Days  377 

Ryan  scouted  the  idea,  but  Mr.  Keyes  insisted  that  it  could 
be  done,  and  leaving  Judge  Ryan's  residence  he  went  imme- 
diately to  the  capitol  and  set  his  friends  at  work.  The  result 
was  that  the  following  joint  resolution  was  immediately 
drawn  by  William  E.  Carter,  and  at  once  adopted  without 

opposition  in  the  assembly  : x 

"Whereas,  His  Honor,  the  Chief  Justice  of  the  Supreme  Court 
of  Wisconsin,  Edward  G.  Ryan,  is  suffering  from  illness  and  de- 
bility resulting  from  confinement  and  overwork  in  discharge 
of  the  arduous  and  responsible  duties  of  his  position,  and 

"Whereas,  rest  and  recreation  are  absolutely  necessary  to  his 
speedy  restoration  to  health  and  strength,  to  enable  him  to  re- 
sume his  labors  upon  the  bench,  therefore 

"Resolved  by  the  Assembly,  the  Senate  concurring,  that  leave 
of  absence  be  and  hereby  is  granted  him  during  the  present  term 
of  said  Court." 

The  resolution  was  sent  to  the  senate  on  the  following  day 
(January  17th),  and  concurred  in  without  debate  or  opposi- 
tion.2 

At  once  upon  the  passage  of  the  resolution  by  the  senate, 
Mr.  Keyes  took  a  copy  of  it  to  Judge  Ryan's  residence.  The 
Judge  was  incredulous  at  first,  but  upon  being  convinced 
that  the  resolution  had  in  fact  been  passed,  was  greatly 
pleased,  as  indeed  he  well  might  be.  So  far  as  I  have  been 
able  to  ascertain,  Judge  Ryan  made  no  extended  trip  during 
his  vacation,  but  took  his  rest  principally  at  his  home  in 
Madison. 

This  vacation,  of  course,  resulted  in  putting  more  work 
upon  the  shoulders  of  his  colleagues,  Cole  and  Lyon.  These 
two  men  carried  the  whole  burden  of  the  work  from  Janu- 
ary 1  st  to  the  adjournment  of  Court  for  the  summer  vaca- 
tion, the  work  during  that  time  filling  practically  the  whole 


1  Assembly  Journal,  1877,  p.  19. 

2  Senate  Journal,  1877,  p.  23. 


378  The  Story  of  a  Great  Court 

of  volume  forty-one  and  the  first  two  hundred  pages  of 
volume  forty-two  of  the  Wisconsin  reports. 

The  Chief  Justice  returned  to  work  at  the  opening  of 
Court  in  the  fall  of  1877,  with  somewhat  improved  health, 
but  it  will  be  seen  by  examination  of  the  Wisconsin  reports 
from  this  time  on  that,  either  on  account  of  illness  or  be- 
cause he  felt  that  too  much  work  was  being  undertaken,  he 
took  no  part  in  a  large  number  of  cases.  He  was  absent 
from  the  Court,  evidently  because  of  physical  incapacity, 
after  December  19,  1879,  and  during  the  entire  January 
term,  1880.  He  went  to  work  again  at  the  opening  of  the 
August  term,  1880,  but  with  difficulty.  His  last  day  upon 
the  bench  was  the  13th  day  of  October,  1880.  The  first  case 
argued  on  this  day  was  the  case  of  Kalk  v.  Fielding?  in  the 
argument  of  which  I  participated.  I  think  the  Chief  Justice 
also  heard  the  following  case  of  J  affray  v.  Crane*  but  left 
the  bench  when  the  case  of  Hill  v.  Durand  5  was  called,  be- 
cause he  had  formerly  been  counsel  for  one  of  the  parties. 

The  next  day  he  sent  word  to  his  colleagues  that  he  was 
ill,  and  on  the  19th  of  October  he  died.  He  had  wished  to 
die  "with  his  harness  on,"  and  Heaven  granted  his  desire. 
There  was  no  dreary  waiting  for  release,  no  slow  decay  of 
mind  and  brain.  His  wonderful  intellectual  powers  were 
unimpaired,  the  matchless  eloquence  of  tongue  and  pen  were 
still  his  in  all  their  perfection;  but  the  body  was  weary, 
disease  had  racked  it  sorely,  and  storms  of  passion  had  en- 
feebled it ;  the  mysterious  veil  which  separates  us  from  the 
other  world  was  drawn  aside  for  a  moment  and  the  great, 
but  storm-tossed,  spirit  of  Edward  George  Ryan  passed  into 
the  presence  chamber  of  its  Creator. 


350  Wis.  339. 
4  Id.  349. 
6  Id.  354. 


EDWARD   GEORGE   RYAN. 
At  the  age  of  65  years, 


Changes  Since  1880  379 


CHAPTER  XXX 

CHANGES  SINCE   l88o 

The  death  of  Chief  Justice  Ryan  has  seemed  to  me  to  be 
the  natural  and  fitting  stopping  place  for  this  work.  That 
event  may  be  said  in  a  general  way  to  mark  the  close  of  the 
great  formative  period  of  Wisconsin  jurisprudence.  Not 
that  the  law  had  then  been  entirely  settled,  but  that  basic 
principles  had  been  determined  on,  and  the  foundation 
broadly  laid  for  Wisconsin's  temple  of  justice.  Hereafter  the 
work  was  to  consist  very  largely  of  the  working  out  of  details, 
and  the  adoption  of  the  great  general  principles  already  es- 
tablished to  new  and  varying  conditions.  That  event  marks 
also  the  end  of  a  generation  since  the  admission  of  the  state 
to  the  Union,  and  the  men  who  occupied  the  stage  during 
the  activity  of  that  generation  have  nearly  all  passed  away. 
Impartial  judgment  may  now  be  passed  upon  their  work  and 
their  motives  with  little  danger  of  bias,  political  or  personal. 
This  can  hardly  be  said  of  the  events  of  the  following  thirty 
year  period.  The  time  has  not  yet  come  when  a  strictly  im- 
partial view  can  be  taken  of  these  latter  events.  I  trust  that 
at  some  time  in  the  future  another  thirty  year  period  may 
be  taken  up  and  reviewed  impartially  and  sympathetically  by 
some  one  who  feels  interest  in  the  subject.  It  is  quite  cer- 
tain that  this  latter  period  cannot  approach  in  dramatic  in- 
terest the  period  covered  by  this  work,  yet  there  will  be 
found  in  it  many  events  well  worth  the  consideration  of  the 
historian.  But,  although  no  attempt  will  now  be  made  to 
write  the  history  of  the  Court  after  November,  1880,  it  will 
be  interesting  to  briefly  note  in  this  chapter  the  changes  in- 


380  The  Story  of  a  Great  Court 

the  bench  from  that  time  until  the  present,  in  order  to  ob- 
serve how  completely  the  idea  has  prevailed  that  neither 
party  conventions  should  nominate,  nor  party  organizations 
should  be  used  to  support  candidates  for  the  Supreme  Bench. 

Upon  the  death  of  Chief  Justice  Ryan,  Governor  Smith 
advanced  Associate  Justice  Cole  to  the  vacant  chair  of  Chief 
Justice,  a  compliment  as  well  deserved  as  it  was  popular, 
and  appointed  as  Associate  Justice,  John  B.  Cassoday  of 
Janesville,  an  eminent  lawyer,  who  remained  upon  the 
bench  for  twenty-seven  years,  rendering  very  valuable  serv- 
ice to  the  state. 

It  was  felt  by  many  Democrats  that  the  Governor  ought, 
in  the  interest  of  the  non-partisan  idea,  to  have  preserved 
the  equilibrium  of  the  bench  by  appointing  some  eminent 
Democrat  in  Judge  Cole's  place ;  however,  the  appointment 
made  was  a  most  excellent  one  and  the  feeling  was  not 
strong  enough  to  overcome  the  repugnance  to  partisan  con- 
tests which  had  now  become  well  established,  and  thus  in 
the  spring  of  1881,  both  Chief  Justice  Cole  and  Justice 
Cassoday  were  re-elected  without  opposition.  The  terms  of 
the  Justices  had  been  increased  to  ten  years  by  the  constitu- 
tional amendment  of  November,  1877,  and  by  a  further 
amendment,  adopted  in  April,  1889,  the  office  of  Chief  Jus- 
tice as  distinguished  from  Justice  was  abolished,  and  all  per- 
sons thereafter  elected  were  denominated  Justices  of  the 
Supreme  Court,  the  one  longest  in  continuous  service  to  be 
ex  officio  Chief  Justice.  Orsamus  Cole  was  therefore  the 
last  elected  Chief  Justice  of  the  Court. 

In  1883  William  P.  Lyon  was  re-elected,  in  1885  David 
Taylor,  in  1887  Harlow  S.  Orton,  and  in  1889  John  B.  Cas- 
soday, all  these  elections  being  unopposed. 

In  1 89 1  it  was  generally  understood  that  Chief  Justice 
Cole  did  not  desire  a  re-election,  and  as  the  state  had  elected 


Changes  Since  1880  381 

a  Democratic  state  ticket  in  the  fall  of  1890  by  a  large  ma- 
jority it  was  universally  recognized  that  a  Democrat  should 
be  elected  in  his  place.  Two  Democrats  were  placed  in  the 
field  as  independent  candidates  by  non-partisan  calls,  viz., 
Silas  U.  Pinney  of  Madison,  and  Eleazar  H.  Ellis  of  Green 
Bay.  In  a  vote  of  about  174,000,  Mr.  Pinney  received  a 
majority  of  19,000. 

Judge  Taylor  died  very  suddenly  April  3,  1891,  and  Gov- 
ernor Peck  appointed  the  writer  to  the  vacant  place  on  the 
fourth  day  of  the  following  May. 

Thus  when,  in  January,  1892,  Judge  Pinney  succeeded 
Chief  Justice  Cole,  there  were  a  majority  of  men  upon  the 
bench  considered  to  be  Democrats,  namely,  Justices  Orton, 
Pinney  and  the  writer.  This  had  not  happened  before  since 
1855,  when  Judge  Cole  defeated  Judge  Crawford. 

In  April,  1892,  the  writer  was  elected  to  fill  out  Judge 
Taylor's  unexpired  term,  without  opposition. 

Some  time  prior  to  April,  1893,  Judge  Lyon  (who  had 
become  Chief  Justice  on  the  retirement  of  Judge  Cole  in 
January,  1892)  announced  that  he  would  not  run  again  and, 
though  strongly  urged  to  reconsider  his  determination,  re- 
fused to  do  so.  He  would  have  been  unanimously  re-elected, 
had  he  consented  that  his  name  be  used.  It  was  now  con- 
ceded all  around  that  his  successor  should  be  a  Republican 
and  two  Republican  circuit  judges,  both  men  of  high  ability, 
were  placed  in  the  field  by  non-partisan  calls,  viz :  Judge 
Alfred  W.  Newman  of  the  Sixth  Circuit  and  Judge  Charles 
M.  Webb,  of  the  Seventh.  The  election  resulted  in  the 
choice  of  Judge  Newman  by  a  majority  of  nearly  50,000,  in 
a  total  vote  of  197,000. 

In  the  fall  of  1894  the  state  went  back  to  the  Republican 
column  by  a  very  large  majority,  and  party  spirit  ran  high. 
There  were  many  republicans  who  thought  that  a  Republican- 


382  The  Story  of  a  Great  Court 

should  be  placed  on  the  bench  in  the  place  of  the  writer,  and 
though  no  party  convention  or  legislative  caucus  was  held, 
the  able  and  popular  circuit  judge  of  the  Fifth  Circuit, 
George  Clementson,  was  placed  in  the  field  by  a  non-partisan 
call  or  petition  as  a  candidate  against  the  writer.  It  was 
well  understood  that  Judge  Clementson  was  a  Republican 
and  that  the  writer  was  a  Democrat.  The  voters  of  the 
state,  however,  adhered  to  the  principle  that  a  sitting  judge 
should  not  be  defeated  simply  because  of  his  politics,  and 
the  writer  was  elected  by  a  majority  of  9,000  in  a  vote  of 
222,000.  The  canvass  did  not  disturb  in  the  least  the 
friendly  personal  relations  of  the  candidates. 

On  the  4th  day  of  July,  1895,  Judge  Harlow  S.  Orton, 
who  had  become  Chief  Justice  on  the  retirement  of  Judge 
Lyon  in  January,  1893,  died  after  a  long  illness.  On  the 
5th  day  of  August  following,  Governor  William  H.  Upham 
appointed  Hon.  Roujet  De  Lisle  Marshall,  Circuit  Judge  of 
the  Eleventh  Circuit,  to  fill  the  vacancy.  Judge  Marshall 
was  known  to  be  a  Republican  in  politics,  and  it  was  uni- 
versally recognized  that  his  appointment  to  succeed  Judge 
Orton,  who  was  rated  as  a  Democrat,  was  the  most  appro- 
priate thing  which  could  be  done  in  order  that  the  majority 
of  the  bench  should  be  in  political  sympathy  with  the  dom- 
inant party.  Judge  Marshall  was  elected  in  April,  1896,  to 
fill  the  unexpired  term  of  Judge  Orton,  and  in  April,  1897, 
for  a  full  term,  both  times  without  opposition. 

Judge  Newman  died  suddenly  January  12,  1898,  as  the 
result  of  a  fall  upon  an  icy  sidewalk,  and  Charles  Valdo 
Bardeen,  Circuit  Judge  of  the  Sixteenth  Circuit,  was  ap- 
pointed to  fill  the  vacancy  eight  days  later.  Judge  Bardeen 
was  elected  to  fill  out  Judge  Newman's  unexpired  term  in 
April  following,  without  opposition. 


Changes  Since  1 880  383 

Judge  Pinney  resigned  November  8,  1898,  on  account  of 
failing  health,  and  on  the  nineteenth  day  of  the  same  month 
Governor  Edward  Scofield  appointed  Joshua  Eric  Dodge,  a 
Democrat,  of  Milwaukee,  to  fill  the  vacancy.  Thus  the 
principle  of  non-partisanship  was  at  last  fully  recognized 
by  the  executive  branch  of  the  government.  The  bench 
prior  to  Judge  Pinney's  resignation  had  been  composed  of 
three  Republicans  and  two  Democrats,  and  Governor  Sco- 
field, although  a  Republican,  deemed  it  his  duty  on  Judge 
Pinney's  resignation  to  appoint  a  Democrat  in  his  place,  and 
thus  preserve  the  political  equilibrium  of  the  bench.  The 
choice  was  unanimously  ratified  by  the  people  by  the  re- 
election of  Judge  Dodge  for  the  unexpired  term  in  April, 
1899,  and  in  April,  1901,  for  a  full  term. 

Judge  Bardeen  died  March  20,  1903,  after  an  illness  of 
several  months.  Had  he  lived  his  re-election  would  have 
taken  place  on  the  first  Tuesday  of  April  following,  without 
opposition,  as  his  nomination  papers  had  been  filed,  there 
was  no  candidate  against  him,  and  his  would  have  been  the 
only  name  on  the  ticket.  This  death,  occurring  so  near 
election  and  after  the  time  when  nomination  papers  could 
regularly  be  filed,  produced  some  confusion,  but  the  legisla- 
ture being  in  session,  an  emergency  act  was  passed  (Chap. 
27,  Laws  1903),  enabling  nominations  to  be  made  and  filed 
within  a  brief  time.  Under  this  act  three  candidates  were 
placed  in  the  field :  Robert  G.  Siebecker,  Circuit  Judge  of 
the  Ninth  District,  William  Ruger,  Esq.,  an  eminent  lawyer 
of  Janesville,  and  J.  G.  M.  Wittig,  Esq.,  of  Milwaukee. 
Judge  Siebecker,  a  Republican,  was  elected,  receiving  nearly 
69,000  votes  as  against  about  45,000  for  the  other  two  can- 
didates Combined. 

At  this  election  a  constitutional  amendment  was  adopted, 
creasing  the  number  of  Justices  to  seven,  and  the  first  of  the 


384  The  Story  of  a  Great  Court 

additional  Justices  was  elected  in  April,  1904,  in  the  person 
of  James  C.  Kerwin  of  Neenah,  who  received  123,828  votes 
as  against  1 12,428  cast  for  Louis  K.  Luse  of  Superior.  Both 
were  Republicans  and  were  put  in  the  field  as  non-partisans. 

In  April,  1905,  the  writer  was  re-elected  without  opposi- 
tion for  a  full  term. 

In  April,  1906,  the  second  of  the  additional  Justices  au- 
thorized by  the  constitutional  amendment;  of  1903  was 
elected.  There  were  four  candidates  placed  in  the  field  by 
nomination  papers,  all  as  non-partisans,  viz :  William  H. 
Timlin  of  Milwaukee,  James  O'Neill  of  Neillsville,  Circuit 
Judge  of  the  Seventeenth  Circuit,  Allen  R.  Bushnell  of  Lan- 
caster, and  H.  H.  Grace  of  Superior.  Messrs.  Timlin  and 
Bushnell  were  known  to  be  Democrats,  and  Messrs.  O'Neill 
and  Grace  to  be  Republicans.  Mr.  Timlin  received  90,528 
votes,  Judge  O'Neill,  51,848,  Mr.  Bushnell,  39,818,  and  Mr. 
Grace,  16,419.  Thus  the  voters  apparently  again  recognized 
the  principle  of  non-partisanship,  for  the  state  was  over- 
whelmingly Republican  in  its  political  complexion,  as  is 
abundantly  shown  by  the  fact  that  in  the  November  election 
of  the  same  year  the  Republican  candidate  for  Governor 
received  a  plurality  of  80,000  votes  over  the  Democratic 
candidate.  In  April,  1907,  Judge  Marshall  received  116,951 
votes  as  against  55.097  for  Henry  T.  Scudder.  Both  can- 
didates ran  as  non-partisan. 

Judge  Cassoday,  who  had  become  Chief  Justice  on  the 
death  of  Chief  Justice  Orton,  died  December  30,  1907,  and 
on  January  4,  1908,  Governor  James  O.  Davidson  appointed 
Robert  M.  Bashford,  Esq.,  of  Madison,  to  fill  the  vacancy. 
Judge  Bashford  was  a  candidate  at  the  April  election,  1908, 
and  was  opposed  by  John  Barnes  of  Rhinelander  who  had 
recently  been  chairman  of  the  Railway  Commission  of  the 
state. 


Changes  Since  1 880  385 

Both  candidates  were  placed  in  the  field  as  non-partisans, 
though  it  was  well  understood  that  Judge  Bashford  was  a 
Republican,  and  Mr.  Barnes  was  a  Democrat.  The  result 
was  that  Mr.  Barnes  received  134,612,  Judge  Bashford, 
84,656,  and  William  Ruger,  15,168.  The  question  of  geo- 
graphical location  of  the  candidates  cut  considerable  figure 
in  the  result,  as  the  north  central  portion  of  the  state  had 
had  no  representative  on  the  bench  since  the  death  of  Judge 
Bardeen  in  1903,  but  the  absolute  disappearance  of  partisan 
considerations  is  shown  by  the  fact  that  though  the  election 
of  Mr.  Barnes  placed  on  the  bench  a  majority  of  Democrats 
in  a  state  overwhelmingly  Republican,  no  attention  was  ap- 
parently paid  to  that  fact.  Judge  Barnes  was  elected  for  a 
full  term  in  April,  1909,  without  opposition. 

September  1,  1910,  Judge  Dodge  resigned,  and  on  the 
tenth  day  of  the  same  month  Governor  Davidson  appointed 
Aad  J.  Vinje,  Circuit  Judge  of  the  Eleventh  Circuit,  to  fill 
the  vacancy.  Judge  Vinje  was  known  to  be  a  Republican, 
and  his  election  for  a  full  term  in  April,  191 1,  was  unop- 
posed. Thus  the  political  equilibrium  of  the  bench  was 
again  restored. 

If  any  further  proof  were  needed  of  the  strength  of  the 
non-partisan  idea  as  applied  to  judicial  elections,  it  would 
be  found  in  the  fact  that  such  elections  were  expressly  ex- 
empted from  the  operation  of  the  primary  election  laws, 
owing  to  the  fact  that  it  was  universally  recognized  that 
candidates  for  the  bench  should  not  be  nominated  through 
party  primaries  or  conventions. 

I  know  of  no  state  which  has  been  so  successful  in  eli- 
minating political  considerations  from  judicial  contests  as 
Wisconsin ;  indeed,  the  sentiment  has  gone  so  far  that  any 
political  activity  on  the  part  of  an  occupant  of  the  bench  or 
a  candidate  for  the  bench  is  universally  considered  as  a 


386  The  Story  of  a  Great  Court 

breach  of  judicial  etiquette.  The  sentiment  prevails  also 
with  reference  to  the  circuit  bench.  While,  in  most  of  the 
circuits,  the  politics  of  the  judge  agrees  with  the  prevailing 
political  view  in  his  circuit,  still  this  is  by  no  means  univer- 
sal, nor  are  party  conventions  called  to  nominated  candi- 
dates. An  attempt  to  place  a  party  candidate  in  the  field 
would  almost  certainly  meet  defeat.  That  this  condition  of 
public  opinion  makes  for  the  independence  and  efficiency  of 
the  judiciary  there  can  be  no  doubt.  In  this  respect,  as  in 
many  others,  Wisconsin  is  in  the  best  sense  a  progressive 
commonwealth. 


Recent  Honors  to  Dixon  and  Ryan  387 

CHAPTER  XXXI 

RECENT    HONORS    TO    DIXON    AND    RYAN 

I  fully  thought  when  I  wrote  the  concluding  words  of  the 
last  preceding  chapter  that  I  had  finished  this  book,  but 
since  those  words  were  written  some  very  interesting  events 
have  taken  place  which  seem  to  me  to  demand  a  place  in 
the  book.     The  improvidence  of  both  Dixon  and  Ryan  in 
pecuniary  matters  was  almost  proverbial,  and  the  natural 
result  of  that  improvidence  was  that  neither  left  any  con- 
siderable amount  of  property  at  his  decease.     Thus  it  came 
about  that  Judge  Dixon's  remains  rested  at  Madison  and 
Judge  Ryan's  at  Milwaukee  with  no  fitting  stone  to  mark 
either  grave.     Thus  the  situation  remained  until  late  in  the 
year  1909  when  the  fact  that  both  graves  were  unmarked 
was  brought  to  the  attention  of  Mr.  Justice  Marshall,  and 
he   determined   that   suitable   memorials   should   be   placed 
over  the  graves  of  these  great  jurists.    He  brought  the  mat- 
ter to  the  attention  of  Hon.  James  G.  Flanders,  president 
of  the  State  Bar  Association,  in  the  year  1910,  and  the  fol- 
lowing gentlemen  were  appointed  a  committee  to  undertake 
the  task  of  raising  the  necessary  funds  and  erecting  a  suit- 
able monuments  over  each  grave:  Justice  R.  D.  Marshall, 
Col.  E.  W.  Keyes,  Gen.  Fred  C.  Winkler,  Hon.  George  G. 
Greene,  Hon.  A.  W.  Sanborn  and  Hon.  J.  E.  McConnell. 
It  is  but  justice  to  say  that  the  successful  accomplishment 
of  this  task  was  due  to  the  indefatigable  energy  and  per- 
sonal efforts  of  Mr.  Justice  Marshall,  who  took  up  the  task 
of  raising  the  necessary  money  and  pursued  it  systematically 


388  The  Story  of  a  Great  Court 

and  relentlessly  until  the  sum  of  $7,610.52  was  raised,  largely 
from  the  bar  and  business  men  of  the  state,  but  aided  by 
substantial  sums  contributed  by  former  residents  of  the  state 
who  now  reside  in  other  states. 

With  this  sum  two  handsome  white  granite  monuments 
were  procured  and  placed  in  position,  the  Dixon  monument 
at  Forest  Hill  cemetery,  Madison,  and  the  Ryan  monument 
at  Forest  Home  cemetery,  Milwaukee,  the  former  being 
forty  feet  and  the  latter  thirty-six  feet  in  height. 

The  Dixon  monument  bears  on  the  front  face  of  the  die 
the  single  word  "Dixon,"  and  on  the  reverse  face  thereof 
the  words : 

"LUTHER  SWIFT  DIXON, 

CHIEF  JUSTICE  OF  WISCONSIN, 

1859-1874." 

On  the  right  face  of  the  die,  this : 

"The  State  Bar  Association  of  Wisconsin  on  behalf  of 
its  members  and  others  at  home  and  abroad,  A.  D.  191 1, 
dedicate  this  memorial  structure  to  the  memory  of  Luther 
Swift  Dixon  and  to  that  conception  by  law  personified  by 
his  distinguished  services  as  Chief  Justice  of  the  State  in 
upbuilding  its  system  of  jurisprudence." 

On  the  left  face  of  the  die,  the  following  excerpt  from 
the  address  by  Hon.  Charles  E.  Dyer  at  the  memorial  pro- 
ceedings before  the  Supreme  Court  of  the  State  December 
29th,  1891,  and  found  in  Volume  81  of  the  Wisconsin  Re- 
ports : 

"It  is  a  serious  thing  to  be  the  arbiter  between  one's  fel- 
low men.  No  functions  are  more  exalted,  no  duties  more 
grave.     He  who  in  the  slightest  degree  by  partisanship  or 


Recent  Honors  to  Dixon  and  Ryan  389 

otherwise  dishonors  its  dignity,  he  who  does  not  keep  the 
ermine  as  white  and  spotless  as  virgin  purity,  is  unworthy 
of  the  trust.    This  was  the  sentiment  of 

LUTHER  SWIFT  DIXON. 
His  name  is  the  synonym  of  Justice,  Integrity,  Truth  and 
Honor.     These  were  the  virtues  which  illumined  his  char- 
acter, radiant  as  the  sunlight,  shining  as  the  stars." 

The  Ryan  monument  bears  on  the  front  face  of  the  die 
the  single  word  "Ryan,"  and  on  the  reverse  face  thereof  the 
words : 

"EDWARD  GEORGE  RYAN, 
CHIEF  JUSTICE  OF  WISCONSIN, 
1874-1880." 

On  the  right  face  of  the  die,  the  words : 

"To  the  memory  of  Edward  George  Ryan,  who,  as  Chief 
Justice  of  Wisconsin,  wrought  with  master  hand  in  up- 
building its  system  of  jurisprudence,  and  added  dignity  to 
government  by  law,  this  memorial  structure  is  erected  by 
the  State  Bar  Association  on  behalf  of  its  members  and 
others  at  home  and  abroad,  A.  D.  191 1." 

On  the  left  face  of  the  die,  this  excerpt  from  the  famous 
Ryan  address  to  the  graduating  class  of  the  Wisconsin  Col- 
lege of  Law,  delivered  in  1873,  being  the  distinguished  Chief 
Justice's  conception  of  the  ideal  judge. 

"In  other  places  in  life,  the  light  of  intelligence,  purity  of 
truth,  love  of  right,  firmness  of  integrity,  singleness  of  pur- 
pose, candor  of  judgment,  are  relatively  essential  to  high 
beauty  of  character;  on  the  Bench  they  are  the  absolute 
condition  of  duty.  The  Judge  who  palters  with  justice,  who 
is  swayed  by  fear,  favor,  affection  or  the  hope  of  reward, 


390  The  Story  of  a  Great  Court 

by  personal  influence  or  public  opinion,  prostitutes  the  at- 
tributes of  God,  and  sells  the  favor  of  his  Maker.  But  the 
light  of  God's  eternal  truth  and  justice  shines  on  the  head 
of  the  just  Judge,  and  makes  it  visibly  glorious. — Ryan, 
1873." 

The  Dixon  monument  was  unveiled  June  1,  191 1,  the 
following  named  persons  by  invitation  of  Hon.  M.  A.  Hur- 
ley, the  president  of  the  Association,  acting  in  behalf  thereof 
and  of  the  donors  as  an  acceptance  committee,  viz. :  Governor 
Francis  E.  McGovern,  Chief  Justice  J.  B.  Winslow,  Hon. 
Geo.  H.  Noyes,  Mrs.  Anna  M.  Vilas,  Hon.  John  M.  Olin, 
Mr.  A.  E.  Proudfit,  Mrs.  Eliza  M.  Keyes,  Hon.  Burr  W. 
Jones,  Mr.  William  R.  Bagley,  Judge  A.  L.  Sanborn  and 
Mr.  L.  S.  Hanks. 

Mr.  Justice  Marshall  delivered  the  presentation  address 
as  follows : 

Mr.  President  and  Members  of  the  Dedication  Committee: 
The  mortal  of  Dixon — Luther  Swift  Dixon — he  who  gave 
so  much  lustre  to  Wisconsin  jurisprudence,  inspiring  this 
conclusion  of  the  eloquent  word  picture  of  him,  his  ideals 
and  fidelity  to  them,  inscribed  on  the  granite  before  us ; 
"His  name  is  the  synonym  of  justice,  integrity,  truth  and 
honor" — "These  were  the  virtues  which  illumined  his  char- 
acter, shining  as  the  sunlight,  radiant  as  the  stars,"  long 
ago  was  returned  to  earth  here  for  that  sleep  which  must 
come  to  us  all ;  the  long  repose  to  be  broken  when,  if  at  all, 
we  can  but  hope.  The  event  was  near  the  close  of  a  beauti- 
ful springlike  afternoon,  a  time  for  winter's  blasts  and  garb 
of  white,  but  there  was  no  winter  yet.  The  season,  seem- 
ingly, had  paused,  turned  backward  as  it  were,  nature  thus 
furnishing  a  fitting  accompaniment  for  the  closing  scenes 


Recent  Honors  to  Dixon  and  Ryan  391 

of  a  most  praiseworthy  earthly  career.  As  the  eloquent 
memorialist  of  the  occasion  thus  beautifully  discoursed : 
"that  afternoon  so  calm  and  bright,  with  an  air  of  vernal 
mildness  rather  than  the  chill  of  winter,  and  as  the  setting 
sun,  rapidly  sinking  in  the  west,  threw  a  flood  of  light  and 
glory  above  and  around  the  spot  where  we  stood,  with  not  a 
cloud  to  be  seen  in  the  sky,  the  whole  scene  in  nature  seemed 
to  be  a  fitting  emblem  of  his  life,"  and  its  close :  "Every- 
thing which  the  eye  rested  upon  was  serene,  pure,  beautiful 
and  glorious ;  and  so  was  his  life,  and  so  it  closed,  leaving  a 
name  illustrious  with  professional  fame  and  honor." 

Reflect  upon  that  picture.  An  occasion,  an  environment, 
a  subject,  a  concurrence  of  all  things  to  emphasize  a  career, 
eminent,  beneficial  and  lovable,  suggesting  some  physical 
indication  here  of  a  state-wide  appreciation  thereof,  speak- 
ing day  by  day  a  people's  admiration  and  love  to  future 
generations. 

The  seasons  and  the  years  rolled  on,  the  absorbing  ac- 
tivities of  busy  life,  seemingly,  obscuring  or  displacing  the 
sentiment  ordinarily  expressed  in  physical  monuments. 
Springtime  came,  and  summertime,  autumn  and  winter 
again,  around  and  again  and  oft  repeated  till  more  than 
twenty  years  had  passed,  and  yet  nothing  here  to  signify 
that  here  was  the  resting  place  of  the  illustrious  Dixon. 
Time  so  long  had  intervened  that  the  fact  itself  had  nearly 
faded  from  human  memory.  Strang  sequel !  all  mentally 
exclaim.  And  again  exclaim,  what  a  lamentable  reflection 
it  would  have  been  upon  the  people  of  Wisconsin,  particu- 
larly upon  the  members  of  the  legal  profession,  if  the  situa- 
tion found  to  exist  after  the  lapse  of  so  much  time  had  been 
allowed  to  permanently  remain.  There  seemed  to  exist 
danger  of  it. 


392  The  Story  of  a  Great  Court 

Mr.  President,  on  behalf  of  the  committee  appointed  by 
your  predecessor  to  cope  with  that  danger,  I  have  the  honor 
and  pleasure  to  announce  that — through  the  generosity  of 
many  persons,  members  of  the  bar  and  others  within  and 
without  the  state — the  task  has  been  fully  accomplished. 
We  now  present,  in  this  dignified  beautiful  memorial,  the 
evidence  thereof,  trusting  it  will  meet  with  approbation  of 
the  donors.  I  assure  you,  Mr.  President,  and  you,  members 
of  the  dedication  committee,  whom  the  president  has  been 
pleased  to  appoint  for  the  ceremonial  acceptance  of  the  work, 
and  assure  all  that  its  substructure  is  laid  so  deep  and  so 
broad  and  is  so  generously  reinforced  with  ribs  of  steel,  as 
to  successfully  withstand  the  hand  of  time,  preserving  the 
stately  appreciation  of  the  life  it  commemorates  and  in- 
culcating the  moral  lesson  it  proclaims  through  ages  to 
come.  The  character  of  the  memorial  was  decided  upon  as 
best  responding  to  the  subject  and  the  sentiment  for  which 
it  stands.  Nothing  short  of  something  really  monumental 
would  do  for  so  monumental  a  character  as  that  of  Luther 
Swift  Dixon. 

The  committee,  in  parting  with  the  evidence  of  its  com- 
pleted task,  constructively,  now  delivers  the  result  to  the 
Bar  Association  of  Wisconsin  to  be  by  it  left  in  trust  to  the 
authorities  of  this  beautiful  silent  city.  The  committee  also 
now  conveys,  by  duplicate  writings,  to  be  likewise  left  in 
trust,  an  ample  fund  to  bear  the  expense  of  caring  for  this 
place  and  memorial  in  perpetuity.  One  duplicate  convey- 
ance is  for  the  records  of  our  Association,  and  the  other  for 
the  trustee  of  the  fund. 

Mr.  President,  all  is  finished  and  we  now  submit  the 
memorial  to  the  dedication  committee  and  for  the  address 
by  Chief  Justice  John  B.  Winslow. 


Recent  Honors  to  Dixon  and  Ryan  393 

The  dedicatory  address  was  delivered  by  the  author  of 
this  book  as  follows  : 

Mr.  Justice  Marshall  and  Gentlemen  of  the  Committee: 

On  behalf  of  the  Bar  Association  of  the  state,  the  donors 
of  the  monument  fund  and  the  people  of  Wisconsin  at 
large,  I  accept  at  your  hands  this  beautiful  memorial  to  the 
memory  of  a  great  jurist,  and  I  beg  to  assure  you  that  the 
long  labor  of  love  of  yourself  and  the  committee  which  has 
culminated  so  successfully  is  most  gratefully  appreciated. 

To  those  who  believe  in  government  by  law  under  con- 
stitutional limitations  and  safeguards  the  present  occasion 
is  of  great  significance. 

He  in  whose  memory  this  granite  colmun  has  been 
erected,  great  and  many-sided  though  he  was,  may  truth- 
fully be  said  to  represent  one  great  idea  above  all  others, 
namely,  the  supremacy  of  the  constitution  and  the  law  as 
administered  by  fearless  and  incorruptible  courts. 

For  nearly  twenty  years  the  snows  of  winter  and  the 
dews  of  summer  have  descended  upon  his  unmarked  grave ; 
the  great  majority  of  his  contemporaries  and  friends  have 
passed  away ;  vast  social  and  economic  changes  have  taken 
place  in  the  state  and  in  the  nation  ;  to  all  apparent  seeming 
the  memory  of  his  life  and  work  was  dying  out  as  die  the 
ripples  on  the  lake  at  eventide. 

But  this  noble  shaft  reared  by  the  loving  and  spontaneous 
contributions  of  hundreds  of  citizens  at  home  and  abroad, 
most  of  whom  never  knew  the  great  man  personally,  dem- 
onstrates that  this  was  mere  seeming  and  nothing  more. 

The  career  of  Luther  Swift  Dixon  was  not  spectacular 
in  the  ordinary  sense ;  he  was  no  warrior  leading  triumph- 
ant hosts  to  victory,  no  orator  moving  multitudes  with  his 
eloquence;  his  life  here  was  the  tedious  and  laborious  life 


394  The  Story  of  a  Great  Court 

of  the  study,  the  library  and  the  court  room,  where  there 
was  no  applause  to  cheer  the  spirit,  nor  adequate  pecuniary 
reward  to  compensate  the  toil  of  the  weary  brain. 

During  the  fifteen  years  which  he  served  the  people  of  the 
state  upon  the  supreme  bench,  though  he  was  frequently  at- 
tacked and  often  misjudged,  there  was  ever  present  to  his 
calm,  clear  gaze  one  great  conception — the  conception  of 
government  by  law,  so  administered  as  to  give  equal  and 
exact  justice  to  every  citizen.  Equal  and  exact  justice  has 
been  the  passionate  demand  of  the  human  soul  since  man 
first  wronged  his  fellowman ;  it  has  been  the  dream  of  the 
philosopher,  the  aim  of  the  law-giver,  the  supreme  endeavor 
of  the  judge,  the  ultimate  test  of  every  government  and 
every  civilization. 

True,  man  has  never  attained  and  doubtless  never  will 
attain  perfect  justice;  this  must  every  remain  exclusively 
the  prerogative  of  an  omniscient  and  omnipotent  God,  but 
it  has  been  well  said  that  to  attain  as  near  as  possible  to 
perfect  justice  is  the  great  interest  of  man  on  earth. 

Pain  and  suffering  may  be  bravely  met,  poverty  and  want 
endured  without  complaint,  the  daily  round  of  exacting  toil 
taken  up  with  cheerful  heart,  but  the  soul  of  man  in  all  ages 
has  bitterly  cried  out  against  injustice  and  insistently  de- 
manded that  it  must  not  be.  Every  government,  past  and 
present,  may  be  known  and  properly  judged  by  the  quality 
of  the  justice  administered  by  its  courts.  The  nearer  the 
approach  to  ideal  and  perfect  justice  in  the  courts,  the 
nearer  the  approach  to  Utopia  in  the  government. 

And  so  it  is  and  ever  must  be  that  he  who  aids  in  estab- 
lishing an  enlightened,  impartial  and  righteous  system  of 
administering  justice  in  his  state  deserves  well  of  his  fellow- 


Recent  Honors  to  Dixon  and  Ryan  395 

men,  and  he  who  acts  as  master  builder  upon  the  temple  of 
justice  deserves  to  have  his  name  and  deeds  written  thereon 
in  letters  imperishable. 

A  master  builder  upon  Wisconsin's  temple  of  justice  was 
Luther  Swift  Dixon ;  a  man  of  comprehensive  and  compel- 
ling intellect,  of  remorseless  accuracy  of  thought  and  abso- 
lute integrity  of  heart  and  mind ;  a  man  pre-eminently  fit 
"to  mold  a  mighty  state's  decrees."  He  came  to  the  high- 
est judicial  office  in  the  state  in  1859  in  succession  to  the 
much  loved  Whiton  at  the  age  of  thirty-three  years.  With 
his  great  qualities  of  mind  and  heart  he  brought  also  phys- 
ical strength,  abounding  manhood  and  a  great  capacity  for 
labor.  There  was  need  of  all  of  them ;  the  basic  law  of  the 
state  had  indeed  been  written  and  its  construction  well  be- 
gun, but  the  effective  molding  of  that  basic  law,  the  building 
of  the  great  superstructure  upon  the  foundation  already 
laid,  remained  yet  to  be  done,  and  to  this  work  he  devoted 
himself  for  the  fifteen  years  which  formed  the  great  con- 
structive years  of  his  life. 

Happily  fitted  indeed  he  was  for  the  task  and  happily  was 
he  mated  with  his  co-laborers,  Orsamus  Cole  and  Byron 
Paine.  All  were  young,  all  had  their  faces  turned  to  the 
light,  all  were  strong  men,  but  it  is  no  disparagement  to  his 
colleagues  to  say  that  Dixon  was  as  truly  the  Chief  Justice 
by  inherent  fitness  and  strength  as  he  was  by  official  title. 
His  mind  was  in  the  highest  sense  judicial ;  no  mists  of  pas- 
sion could  dim  its  vision,  no  temporary  tumult  could  affect 
its  serenity,  no  thought  of  consequences  could  swerve  it 
from  its  course. 

How  well  he  builded  the  fair  structure  of  Wisconsin's 
jurisprudence  is  known  to  all  who  have  given  the  subject 


396  The  Story  of  a  Great  Court 

any  thought.  The  record  is  forever  written  in  twenty-seven 
volumes  of  Wisconsin  reports :  that  record  went  very  far  to 
place  Wisconsin  in  the  front  rank  of  American  states  so  far 
as  quality  of  its  jurisprudence  is  concerned;  on  every  page 
there  is  convincing  evidence  of  the  moral  and  intellectual 
greatness  of  the  author  and  every  volume  bears  witness  to 
his  constant  struggle  to  realize  the  ideal  of  equal  and  exact 
justice.  This  is  what  has  caused  this  noble  shaft  to  rise; 
this  is  what  causes  the  name  of  Dixon  to  live  today,  and 
this  is  what  shall  cause  his  name  to  live  as  long  as  the  state 
itself  shall  live. 

To  his  memory,  therefore,  we  now  dedicate  this  monu- 
ment, confidently  believing  that  it  shall  ever  stand  proclaim- 
ing his  name  and  deeds  to  the  people  of  a  grateful  state ; 
but  not  alone  do  we  dedicate  it  to  the  memory  of  Dixon ; 
this  were  far  too  narrow  a  view  of  its  significance ;  we  rev- 
erently dedicate  it  also  to  the  imperishable  vision  of  perfect 
justice  under  the  constitution,  and  the  law,  the  vision  under 
whose  inspiration  he  wrought,  praying  that  the  vision  may 
continue  to  inspire  the  statesman,  the  judge,  and  the  Amer- 
ican patriot  of  every  degee  until  time  shall  cease,  "the  sun 
grow  cold"  "and  the  leaves  of  the  judgment  book  unfold." 

On  the  following  day  the  monument  to  the  memory  of  the 
late  Chief  Justice  Ryan  was  unveiled,  presented  for  accept- 
ance and  formally  dedicated ;  by  invitation  of  the  president 
of  the  Association,  the  following  named  persons  acting  as 
an  acceptance  committee :  Hon  James  G.  Flanders,  Hon. 
Thos.  W.  Spence,  Mr.  W.  A.  Hayes,  Mr.  Geo.  D.  Van  Dyke, 
Mr.  Fred  Vogel,  Mr.  Geo.  P.  Miller,  Judge  L.  W.  Halsey, 
Mr.  C.  C.   Markham,  Hon.  Gerrv  W.  Hazleton  and  Mr. 


Recent  Honors  to  Dixon  and  Ryan  397 

H.  A.  J.  Upham.     The  presentation  address  was  by  Gen. 
F.  C.  Winkler  as  follows : 

Mr.  President  and  Members  of  the  Dedication  Committee: 
Among  the  prominent  and  efficient  men  who  made  and 
marked  the  early  history  of  Wisconsin  none  looms  up  more 
conspicuously  than  Edward  G.  Ryan.  The  light  of  his 
genius  gleamed  from  his  eye,  expressed  itself  in  his  attitude 
and  riveted  the  attention  of  all  whom  he  met.  His  great 
qualities  are  familiarly  known  and  common  topics  of  con- 
versation in  the  legal  profession.  When  obituary  services 
were  had  after  his  decease  an  eloquent  member  of  the  Mil- 
waukee Bar  truthfully  said  of  him : 

"He  died  as  he  long  wished  to  die,  in  the  exercise  of  judi- 
cial functions,  with  mental  power  unabated,  with  his  pro- 
fessional harness  upon  him.  A  mind  comprehensive  and 
powerful  in  its  grasp,  quick  of  perception ;  profound  learn- 
ing of  the  law ;  close  familiarity  with  the  writers  of  the  past  ; 
thorough  mastery  and  precision  of  language ;  classical  beauty 
of  diction ;  wonderful  power  of  imagery ;  great  nervous 
force  and  energy — were  the  marked  characteristics  of  him 
who  towered  above  all  others  at  our  bar — the  lawyer  among 
lawyers." 

He  was  laid  to  rest  with  remarks  like  these.  But  his  rest- 
ing place  in  this  city  of  the  departed  remained  without  mark. 
The  same  was  true  of  another  Chief  Justice  who  had  ren- 
dered invaluable  services  to  the  state. 

After  a  lapse  of  many  years  a  valued  member  of  the  court 
over  which  they  once  presided  gave  voice  to  the  thought 
that  this  ought  not  to  be,  that  the  bar  of  the  state  owed  it  to 
itself  to  see  that  proper  monuments  be  placed  where  these 
great  jurists  lie  buried.  Pursuant  to  his  call  a  committee 
was  organized  of  which  he  was  made  chairman.     Through 


398  The  Story  of  a  Great  Court 

his  zeal  and  care,  aided  by  generous  contributions  from 
members  of  the  bar  and  friends,  a  stately  and  noble  monu- 
ment has  been  erected  in  commemoration  of  each  of  these 
men. 

The  chairman  himself  yesterday  made  formal  presentation 
to  representatives  of  the  State  Bar  Association  of  the  shaft 
erected  to  the  memory  of  Chief  Justice  Dixon  in  the  city  of 
Madison,  and  I  now,  at  his  request,  on  behalf  of  the  com- 
mittee and  the  donors,  make  presentation  through  you,  the 
members  of  the  dedication  committee,  to  the  State  Bar  As- 
sociation of  the  tasteful  granite  memorial  which  stands  be- 
fore you  and  which  will  through  all  time  bear  testimony  to 
the  greatness  and  distinguished  public  services  of  Chief  Jus- 
tice Edward  G.  Ryan. 

The  committee  has  also  been  able  to  provide  for  an  ample 
fund,  in  trust,  permanently  to  care  for  this  place  of  burial, 
of  which  evidence  is  placed  in  the  hands  of  your  Association. 

The  work  of  the  construction  committee  is  done,  and  it 
herewith  transfers  the  monument,  together  with  the  fund 
deposited  for  its  support,  to  the  dedication  committee  ap- 
pointed to  receive  them. 

The  dedicatory  address  was  by  Hon.  James  G.  Flanders 
in  these  words : 

Thirty  years  ago  Edward  George  Ryan,  then  and  for 
six  years  prior  thereto  Chief  Justice  of  the  Supreme  Court 
of  Wisconsin,  laid  down  the  duties  and  responsibilities  of 
his  life. 

In  1842  he  came  to  the  sparsely  settled  territory  of  Wis- 
consin. Its  inhabitants  scarcely  exceeded  in  number  one- 
tenth  of  the  present  population  of  the  metropolis  of  the  state. 
For  more  than  thirty  years  he  followed  the  duties  of  his 
profession  and  was  an  active  participant  in  most  of  the  im- 


Recent  Honors  to  Dixon  and  Ryan  399 

portant  trials  in  the  state.  He  was  endowed  with  great 
ability  and  possessed  great  learning  and  unsurpassed  elo- 
quence. The  logical  and  analytical  powers  of  his  mind  en- 
abled him  to  at  once  grasp  and  apply  legal  principles.  His 
devotion  to  the  profession  was  without  reserve.  His  re- 
spect for  the  law  as  administered  for  centuries  in  English- 
speaking  communities  was  unbounded.  Some  of  the  ec- 
centricities and  weaknesses  of  genuis  inhered  in  his  char- 
acter and  his  life  was  at  periods  stormy,  but  his  adherence 
to  the  highest  principles  of  the  law  and  the  best  standards 
■of  the  profession  never  varied,  notwithstanding  some  in- 
firmities of  temper.  Chief  Justice  Cole  in  his  response  to 
the  resolutions  presented  in  the  Supreme  Court  not  long 
after  his  death  said  of  him  : 

"In  order  to  correct  a  popular  misapprehension  upon  this 
point,  I  will  say  that  in  consultation,  while  engaged  in  the 
labor  of  considering  and  deciding  causes,  the  deportment  of 
the  Chief  Justice  towards  his  associates  was  uniformly  kind, 
respectful  and  courteous.  No  irritating  word,  no  offensive 
language,  fell  from  his  lips  while  thus  employed.  He  often 
made  up  his  mind  quickly  how  a  cause  should  be  ruled,  but 
"he  was  not  impatient  of  hesitation  or  opposition  on  the  part 
of  others.  On  the  contrary,  he  listened  with  attention  to 
whatever  any  one  had  to  say  adverse  to  his  views,  and  often 
readily  came  to  their  conclusion  when  it  seemed  supported 
by  the  better  reason  or  authority." 

His  standard  of  professional  honor  and  of  professional 
duties  was  the  highest  and  his  sentiments  in  reference  to  the 
responsibilities  of  a  lawyer  were  lofty.  His  memorable  ad- 
dress before  the  law  class  of  the  university  in  1873  at  once 
became  a  classic.  It  has  been  the  treasury  from  which  has 
been  selected  one  of  the  inscriptions  upon  this  monument 


400  The  Story  of  a  Great  Court 

and  in  widely  separated  communities  from  that  address  por- 
tions have  been  drawn  as  precepts  to  which  all  members  of 
our  profession  can  look  as  rules  of  conduct. 

It  has  been  said  that  the  triumphs  of  the  advocate  are 
written  in  the  sand  and  quickly  pass  from  the  memory  of 
man.  It  is  the  fact,  nevertheless,  that  his  forensic  efforts 
still  live  in  the  recollection  of  many  now  living  and  that 
tradition  has  handed  them  on  to  the  coming  generation. 
Nearly  sixty  years  ago  his  powers  of  satire  and  invective 
and  his  eloquence  placed  a  trial  before  the  Senate  of  Wis- 
consin in  the  front  rank  of  the  great  trials  of  history.  The 
opinions  filed  by  him  while  Chief  Justice  are  examples  of  the 
purest  English.  His  command  of  language  selected  without 
failure  the  precise  words  to  express  the  principles  he  was 
expounding  and  those  opinions  have  helped  to  create  the 
high  position  maintained  among  lawyers  of  the  country  by 
the  Supreme  Court  of  Wisconsin. 

At  the  time  of  his  death  the  thinly  populated  territory 
had  become  an  empire  with  boundless  resources  and  a  popu- 
lation of  a  million  and  a  half.  At  the  time  we  assemble  here 
to  do  honor  to  his  memory  the  state  he  served  so  well  is  in 
the  front  rank.  Its  bar,  always  a  strong  one,  has  increased 
in  number  and  in  strength.  It  has  contributed  members  to 
the  profession  in  different  states.  Not  a  few  of  them  have 
attained  positions  of  honor  and  distinction. 

When,  something  more  than  a  year  ago,  the  movement 
was  inaugurated  to  erect  the  monuments  to  Chief  Justice 
Ryan  and  Chief  Justice  Dixon,  contributions  came  to  the 
committee  from  Wisconsin  men  in  many  different  cities. 
Nor  were  these  contributions  confined  to  the  members  of 
our  profession.    Sons  of  Wisconsin  pursuing  other  occupa- 


Recent  Honors  to  Dixon  and  Ryan  401 

tions  in  this  and  other  states  gave  liberally.     Some  con- 
tributions came  without  solicitation. 

It  is  well  that  such  a  memorial  should  be  erected.  It  is 
well  that,  towering  toward  the  sky,  it  should  serve  to  remind 
those  who  visit  this  silent  city  of  the  dead  of  the  man  whose 
name  is  graven  on  it,  but  the  deathless  fame  of  this  great 
lawyer  may  well  endure  after  the  ravages  of  time  have 
caused  the  granite  to  crumble.  It  is  said  that  through  every 
rope  manufactured  for  the  British  navy  there  runs  a  single 
scarlet  strand.  The  cumbersome  cable  which  moors  the 
man-of-war  and  the  small  halyard  which  raises  the  pennant 
to  the  masthead  alike  disclose  in  every  section  this  insepar- 
able proof  of  ownership.  So  the  triumphs  and  achievements 
of  the  great  Chief  Justice  are  interwoven  in  the  history  of 
Wisconsin,  and  so  long  as  there  is  a  state  its  citizens  will 
honor  and  remember  his  great  ability. 


INDEX. 


ACKER,  CHARLES,  12. 

ALLEN,  WILLIAM  C,  207. 

ANDERSON,  MATT,  370. 

ARNOLD,  JONATHAN  E.,  counsel  for  Governor  Barstow,  102. 
at  convention  of  1863,  207. 

B. 
BAGLEY,  WILLIAM  R.,  390. 

BARBER,  J.  ALLEN,  337. 

BARDEEN,  CHARLES  VALDO,  appointment  of,  382. 
death  of,  383. 

BARNES,  A.  H.,  254. 

BARNES,  JOHN,  candidate  for  justice  of  the  supreme  court,  384. 
election,  385. 
election  for  full  term,  385. 

BARSTOW,  WILLIAM  A.,  elected  Governor  in  1853,  97. 

contest  for  the  office  with  Coles  Bashford  in  1856,  97-107. 
resignation,  106. 

BASCOM,  JOHN,  355. 

BASHFORD,  COLES,  republican  candidate  for  Governor,  97. 
contest  for  the  office  with  William  A.  Barstow,  97-107. 
assumption  of  the  office,  107. 

BASHFORD,  ROBERT  M.,  appointment  of,  384. 

BENNETT,  JOHN  R.,  212,  274. 

BEYLER,  CHRISTIAN  HENRY,  court  crier,  302. 

BLACK,  JEREMIAH  S.,  Attorney  General  of  the  United  States,  80. 

BOOTH  CASE,  THE,  arrest  of  Glover  near  Racine,  70. 
public  action  in  Racine  and  Milwaukee,  71,  72. 
arrest  of  Sherman  M.  Booth,  74. 


404  Index 

BOOTH  CASE— Continued, 
discharge  of  Booth,  75,  76. 
the  Racine  resolutions,  75. 
hearing  before  Supreme  Court,  76. 
trial  of  Booth  and  Rycraft  in  United  States  Court,  78. 
clash  of  Supreme  Court  with  Federal  Courts,  79,  80. 
opinion  by  Chief  Justice  Taney  of  the  United  States  Supreme 

Court,  81. 
decision  of  Supreme  Court  of  Wisconsin  reversed  by  United 
States  Supreme  Court,  118. 

BOOTH,  SHERMAN  M.,  as  editor  of  the  "American  Freeman,"  69. 
description  of  his  share  in  the  rescue  of  Glover,  73. 
arrest  for  assisting  in  rescue,  74. 
discharge,  75. 

trial  in  United  States  Court,  78. 
conviction,  78. 

decision  of  Supreme  Court  of  Wisconsin  reversed  by  United 
States  Supreme  Court,  118. 

BOUNTIES  for  substitute  enlistments,  act  providing  for,  244,  245. 

BRAGG,  Edward  S.,  at  convention  of  1863,  207. 

BROWN,  BERIAH,  39. 

BROWN,  JAMES   S.,  52. 

BRUNSON,  ALFRED,  12. 

BUSHNELL,  A.  R.,  speech  favoring  Judge  Cothren's  candidacy, 
370. 
candidate  for  justice  of  the  supreme  court,  384. 

BUTTERFIELD,  MOSES  BRADFORD,  biographical  sketch,  45. 
letters  of,  46-58. 


CARPENTER,  MATT  H.,  counsel  for  Governor  Barstow,  102. 
at  convention  of  1863,  207. 
possible  candidate  for  Chief  Justice,  212. 
partner  with  Edward  G.  Ryan,  309. 

CARPENTER,  S.  D.,  39. 

CARY,  JOHN  W.,  votes  for,  as  nominee  for  Chief  Justice,  209. 
address  upon  death  of  Judge  Paine,  269. 


Index  405 

CASES  CITED. 

Ableman  v.  Booth,  11  Wis.  *498:   129,  294. 

Ableman  v.  Booth  and  United  States  v.  Booth,  12  How.   (62 

U.  S.)    506:    80,  118. 
Attorney  General  v.  Blossom,  1  Wis.  *317:  30,  82. 
Attorney  General  v.  Brown,  1  Wis.  *513:   83. 
Attorney  General  v.  Brunst,  3  Wis.  *787:  84. 
Attorney  General  v.  Eau  Claire,  37  Wis.  400:  345. 
Attorney  General  v.  Railway  Companies,  35  Wis.  425:  30,  82, 

133,  342. 
Ex  parte  Ballman,  4  Cranch,  95:  188. 
Blunt  v.  Walker,  11  Wis.  *334:  140,  166. 
Ex  parte  Sherman  M.  Booth,  3  Wis.  *145:  78. 
In  Re  Sherman  M.  Booth,  3  Wis.  *1:  75. 
In  Re  Booth  and  Rycraft,  3  Wis.  *157:  79. 
Breitenbach  v.  Turner,  18  Wis.  *139:  241. 
Brodhead  v.  Milwaukee,  19  Wis.  *624:  244. 
Brown  v.  Peck,  2  Wis.  *261:  83. 
Callanan  v.  Judd,  23  Wis.  343:  181. 
Campbell  v.  Campbell,  37  Wis.  206:  351. 
State  ex  rel.  Chandler  v.  Main,  16  Wis.  *398:  215. 
Chicago  &  N.  W.  Ry.  Co.  v.  State,  128  Wis.  553:  226. 
Chicago  &  N.  W.  Ry.  Co.  v.  Whiton,  13  Wallace,  270:  263. 
Clark  v.  Drake,  3  Pinney,  228:  31. 
Clark  v.  Farrington,  11  Wis.  *306:  140,  166. 
Cohens  v.  Virginia,  6  Wbeaton,  264:  295. 
Cornell  v.  Hichens,  11  Wis.  *353:  140,  166,  256. 
Craker  v.  C.  &  N.  W.  Ry.  Co.,  36  Wis.  657:  349. 
Croft  v.  Bunster,  9  Wis.  *503:   139. 
Crosby  v.  Roub,  16  Wis.  *616:  256. 
State  ex  rel.  Drake  v.  Doyle,  40  Wis.  175:  347. 
Druecker  v.  Salomon,  21  Wis.  *621:  245. 
Fisher  v.  Horicon  I.  &  M.  Co.,  10  Wis.  *351:  29. 
Fisher  v.  Otis,  3  Pinney,  78:  139. 
Getty  v.  Rountree,  3  Pinney,  379:  30. 
Gillespie  v.  Palmer,  20  Wis.  *544:  246. 
In  Re  Gregg,  15  Wis.  *479:  240. 
In  Re  Griner,  16  Wis.  *423:  197. 
Hasbrouck  v.  City  of  Milwaukee,  13  Wis.  *37:  297. 
Hasbrouck  v.  Shipman,  16  Wis.  *296:   201. 
Hazleton  v.  Putnam,  3  Pinney,  107:  31. 
Hepburn  v.  Griswold,  8  Wall.  603:  241. 
In  Re  Higgins,  16  Wis.  *351:  195,  240,  260. 
Hill  v.  Durand,  50  Wis.  354:  378. 


406  Index 

CASES  CITED— Continued. 

Insurance  Co.  v.  Morse,  20  Wall.  445:  348. 

Jaffray  v.  Crane,  50  Wis.  349:  378. 

In  Re  Janitor,  35  Wis.  410:  302. 

Jones  v.  Estate  of  Keep,  19  Wis.  *369:  243. 

Jones  v.  Pettibone,  2  Wis.  *308:  83. 

Kalk  v.  Fielding,  50  Wis.  339:  378. 

Kellogg  v.  C.  &  N.  W.  Ry.  Co.,  26  Wis.  233:  298. 

Kellogg  v.  Larkin,  3  Pinney,  123:  31. 

In  Re  Kemp,  16  Wis.  *359:  192,  209. 

Kneeland  v.  Milwaukee,  15  Wis.  454:   228. 

Knorr  v.  Home  Ins.  Co.,  25  Wis.  143:  233,  260. 

Knowlton  v.  Supervisors,  9  Wis.  *410:  221. 

Knox  v.  Lee,  12  Wall.  457:  242. 

Martin  v.  Hunter,  1  Wheaton,  304:  295. 

Martin  v.  Mott,  12  Wheaton,  19:  197. 

Martineau  v.  McCollum,  3  Pinney,  455:  31,  139. 

Mc Williams  v.  Bragg,  3  Wis.  *424:   84. 

Ex  parte  Merryman,  9  Am.  Law  Reg.  524:  189. 

Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400:  241. 

Milwaukee  &  M.  R.  R.  v.  Eble,  3  Pinney,  334:  31. 

Town  of  Milwaukee  v.  City  of  Milwaukee,  12  Wis.  *93:  297. 

Moseley  v.  Chamberlain,  18  Wis.  *700:   261. 

Morse  v.  Insurance  Co.,  30  Wis.  496:  347. 

Newcomb  v.  Smith,  2  Pinney,  131:  28. 

Newell  v.  Smith,  15  Wis.  *101:   29. 

Norton  v.  Peck,  3  Wis.  *714:  84. 

Norval  v.  Rice,  2  Wis.  *22:  83. 

Nunnemacher  v.  State,  129  Wis.  190:   15,  219,  226. 

Oatman  v.  Bond,  15  Wis.  *20:  179,  212. 

In  Re  Oliver,  17  Wis.  *681:  194. 

Phelps  v.  Rooney,  9  Wis.  *70:  289. 

Prigg  v.  Pennsylvania,  16  Peters,  640:  76. 

State  ex  rel.  Resley  v.  Farwell,  3  Pinney,  393:  30. 

Rogan  v.  Walker,  1  Wis.  *527:  83. 

Sayles  v.  Davis,  22  Wis.  *225:   244. 

Speer  v.  Blairsville,  50  Pa.  St.  150:  245. 

Sprague  v.  Birchard,  1  Wis.  *457:  83. 

State  v.  Frear,  138  Wis.  536:  251.' 

State  v.  Hastings,  10  Wis.  *525:  92. 

State  v.  Ludington,  33  Wis.  107:  373. 

State  v.  Railway  Companies,  128  Wis.  553:  226. 

State  v.  W.  L.  &  F.  R.  P.  Co.,  11  Wis.  *35:  226. 

Sutton  v.  Wauwatosa,  29  Wis.  21:  300. 


Index  407 


CASES  CITED— Continued. 

In  Re  Tarble,  25  Wis.  390:  260. 

Taylor  v.  Pratt,  3  Wis.  *674:  84. 

Truman  v.  McCollum,  20  Wis.  *360:  181. 

United  States  v.  Tarble,  13  Wallace,  397:  268. 

Vassau  v.  Thompson,  46  Wis.  345:  352. 

Von  Baumbach  v.  Bade,  9  Wis.  *559:  292. 

Walker  v.  Shepardson,  2  Wis.  *384:  83. 

Weeks  v.  Milwaukee,  10  Wis.  *243:  221: 

In  Re  Weblitz,  16  Wis.  *443:  198. 

Whiting  v.  Gould,  1  Wis.  *195:  58. 

Whiton  v.  C.  &  N.  W.  Ry.  Co.,  25  Wis.  424:  263. 

Wight  v.  Rindskopf,  43  Wis.  344:   350. 

Wisconsin  Central  R.  Co.  v.  Taylor  Co.,  52  Wis.  37:  229. 

CAS  SODA Y,  JOHN  B.,  appointed  as  associate  justice,  380. 
re-election,  380. 
second  re-election,  380. 
became  Chief  Justice,  384. 
death,  384. 

CATE,  G.  W.,  337. 

CIRCUITS. 

composition  of,  11. 

CIRCUIT  JUDGES, 
election  of,  11. 

ex-officio  justices  of  the  Supreme  Court,  11. 
first  election  of,  11. 
nominations  of,  11,  12. 

CLARK,  JAMES  G.,  173. 

CLARK,  JAMES  M.,  12. 

CLARK,  SATTERLEE,  209. 

CLEMENTSON,  GEORGE,  candidate  for  associate  justice  of  the 
Supreme  Court,  382. 

CODE  OF  PROCEDURE,  passed  by  legislature,  108,  109. 

COLE,  ORSAMUS,  election  in  1855,  87. 
biographical  sketches,  88-92. 

acceptance  of  call  to  be  candidate  for  re-election,  178. 
election,  179. 
re-election,  252. 
re-election,  375. 


408  Index 

COLE,  ORSAMUS— - Continued, 
made  Chief  Justice,  380. 
re-election,  380. 
declination  to  run  again,  380. 

CONSTITUTION. 

clause  granting  governor  power  to  appoint  judges,  8. 

clause  prohibiting  the  holding  of  a  judicial  election  at  time 

of  general  election,  9. 
judicial  circuits,  11. 

circuit  judges  also  judges  of  the  Supreme  Court,  11. 
section  as  to  rule  of  taxation,  15. 

amendment  increasing  number  of  judges  and  terms,  356. 
amendment  of  1877,  increasing  terms,  380. 
amendment  of  1889,  abolishing  office  of  Chief  Justice,  380. 
amendment  of  1903,  increasing  number  of  justices  to  seven, 

383. 

CONSTITUTIONAL  CONVENTIONS. 

first,  Oct.  5th— Dec.  16,  1846,  2. 

second,  Dec.  15,  1847— Feb.  1,  1848,  3. 

provisions  for  the  election  of  all  judges  by  popular  vote  a 
pioneer  step,  3. 

convention  of  1846,  sentiment  in  favor  of  appointive  judi- 
ciary, 5. 

convention  of  1846,  committee's  report  on  judicial  article,  8. 

convention  of  1848,  terms  of  judges,  8. 

clauses  giving  governor  appointive  power,  8. 

CONVENTION,   independent,   for   nomination   of   candidates   for 
Supreme  Court  judges,  39. 

COOLEY,  JUDGE,  Michigan  Supreme  Court,  7. 

COON,  S  P.,  37. 

COTHREN,  M.  M.,  speech  Democratic  convention,  1852,  37. 
candidate  for  chief  justice  of  Supreme  Court  110. 
biographical  sketch,  113-115. 
defeat,  115. 
votes   for,   in   convention   of  1863   for  nomination   for   chief 

justice,  209,  210. 
second  nomination,  210. 
third  nomination,  370. 

CRAWFORD,  SAMUEL,  candidate  for  associate  justice,  38. 
election,  40. 


Index  409 


CRAWFORD,   SAMUEL— Continued, 
biographical  sketch,  43. 
defeat  by  Judge  Cole  87. 
salary  controversy,  92,  95. 

CURTIS,  J.  S.,  269. 


DELANY,  MR.,  of  Columbia  County  37. 

DEMOCRATIC   CONVENTIONS,   1852,   33. 

resolution  as  to  resignation  of  circuit  judges  who  were  can- 
didates for  justice  of  the  Supreme  Court  38. 

adjournment  of  the  convention,  39. 

convention  of  1857,  109. 

convention  of  1859  and  nomination  of  W.  P.  Lynde,  117. 

convention  of  1862,  204-207. 

The  "Ryan  address"  205-207. 

convention  of  1863  to  nominate  candidate  for  Chief  Justice, 
208-212. 

convention  of  1868,  253. 

DEWEY,  NELSON,  209. 

DIXON,  LUTHER  S.,  appointment  of,  to  fill  vacancy  created  by 
death  of  Chief  Justice  Whiton,  122. 
biographical  sketches,  122-128. 
nomination  by  non-partisan  call,  132. 
election,  141. 

biographical  sketches,  144-153. 
votes  for,  Democratic  convention  of  1863,  209-210. 
election,  217. 
resignation,  251. 
reappointment,  251. 
renomination  in  1868,  254. 
attack  upon,  256-259. 
election,  259. 

notable  opinions,  289-304. 
resignation,  304. 

description  of  memorial  to,  388,  389. 
unveiling  of  memorial,  390-396. 

DODGE,  JOSHUA  ERIC,  appointment  of,  383. 
resignation,  385. 

DOOLITTLE,  JAMES  R.,  first  United  States  Senator  from  Wis- 
consin, 109. 


410  Index 

DOTY,  JAMES  D.,  first  judge  appointed  under  act  of  January, 
1823,  2. 

DOWNER,  JASON,  appointment,  234. 
biographical  sketch,  235-238. 
resignation,  238. 

excerpt   from    dissent   in    Brodhead   v.    Milwaukee,    19    Wis. 
*624,   224. 

DRAFT  LAWS,  196-201,  245-246. 

DRURY,  E.  W.,  12. 

DUNN,  CHARLES,  Chief  Justice  territorial  Supreme  Court,  2. 
chairman  Democratic  convention,  1852,  33. 
biographical  sketch,  33-36. 
speech  Democratic  convention,  1852,  37. 
nominated  for  Chief  Justice  at  convention  of  1868,  254. 
attack  upon,  254-255. 

DYER,  CHARLES  E.,  tribute  to  Judge  Paine,  269. 

speech  upon  presentation   of  bar  memorials  after  death  of 

Judge  Paine,  279. 
excerpt  from  speech  of,  on  Dixon  monument,  388. 

E. 
EARNEST,  J.  H.,  370. 

EASTMAN,  B.  C,  12. 

EATON,  PARLEY,  12. 

EDWARDS,  M.  A.,  209. 

ELDRIDGE,  CHARLES  A.,  named  as  candidate  for  justice  of  the 
Supreme  Court,  178. 
chairman  Democratic  state  central  committee,  205,  208. 

ELLIS,    ELEAZAR    HOLMES,    candidate    for    Associate    Justice, 
254,  381. 

ENLISTMENT  CASES,  240. 

ESTABROOK,  HON.  EXPERIENCE,  Attorney  General,  320. 

F. 
FARM   MORTGAGORS,  THE, 

the  question  In  the  judicial  contest  of  1860,  137-140. 

how  the  problem  arose,  165-167. 

the  "Home  League,"  167-169,  170,  172,  212,  213. 


Index  41  I 

FARM  MORTGAGORS,  THE— Continued, 
first  convention,  167. 
second  convention,  171. 

chapter  88,  laws  1861,  to  render  railroad  mortgages  value- 
less, 173-176. 
declared  unconstitutional,   179. 

chapter  330,  laws  1862,  another  farm  mortgage  relief  meas- 
ure, 180. 
chapter  305,  laws  1863,  180. 
chapter  169,  laws  1864,  181. 
chapter  79,  laws  1867,  181. 
attitude  toward  re-election  of  Chief  Justice  Dixon,  212. 

FINCH,  ASAHEL,  52. 

FLANDERS,  JAMES  G.,  President  of  the  State  Bar  association, 
387. 
member  of  acceptance  committee,  Ryan  memorial,  396. 
dedicatory  address  Ryan  monument,  398-401. 

FRAZER,  WILLIAM  C,  justice  territorial  Supreme  Court,  2. 

FUGITIVE  SLAVE  LAW,  67-69. 

G. 

GOODELL,   MISS   LAVINIA,   motion  of   for   admission   to   prac- 
tice, 317. 

GRACE,  H.  H.,  candidate  for  justice  of  the  Supreme  Court,  384. 

GREENE,  GEO.  G.,  387. 

GREGORY,  J.  C,  132. 

H. 

HABEAS  CORPUS,  suspension  of  writ  of,  184-196. 

decision  holding  that  President  had  no  power  to  suspend  writ 

where  war  did  not  exist,  192,  193. 
question  of,  in  Tarble  case,  260-268. 

HALL,  DANIEL,  270. 

HALSEY,  JUDGE  L.  W.,  396. 

HANKS,  L.  S.,  390. 

HAYES,  W.  A.,  396. 

HAZLETON,  GERRY  W.,  396. 


412  Index 

HEAD,  O.  S.,  254. 

HOBART,  MR.,  of  Sheboygan,  37. 

HOWE,  JAMES  H.,  Attorney  General,  131. 

HOWE,  TIMOTHY  O.,  elected  to  succeed  Judge  Stow  in  fourth 
circuit  and  as  judge  of  Supreme  Court,  12. 
biographical  sketch,  23,  24. 
counsel  for  Coles  Bashford,  99. 

HUBBELL,   LEVI,   independent  candidate   circuit  judge,   second 
judicial  circuit,  12. 
election  of,  12. 
biographical  sketch,  16,  17. 
candidate  for  nomination  for  chief  justice,  37. 
impeachment  of,  as  referred  to  in  letters  of  Moses  B.  Butter- 
field,  53-57. 
impeachment   of   as    referred   to   in   biographical    sketch   of 
Ryan,  336-338. 

HUDD,  THOMAS  R.,  370. 

HURLEY,  M.  A.,  390. 

I. 

INSURANCE   CASES,    the   effect   of   removal   to   United    States 
Courts,  347-349. 

IRVIN  DAVID,  early  federal  judge,  2. 
justice  territorial  Supreme  Court,  2. 


JACKSON,  MORTIMER  M., 

independent  candidate  for  circuit  judge,  fifth  circuit,  12. 
election  of,  12. 
biographical  sketch,  24,  25. 

JENKINS,  JAMES  G.,  partner  with  Edward  G.  Ryan,  309. 
tribute  to  Ryan,  311,  312,  315. 
anecdotes  of  Ryan,  321,  322. 

JOHNSON,  D.  H.,  234. 

JONES,  BURR  W.,  390. 

JUDD,  STODDARD,  254. 


Index  413 

JUDICIARY,  appointive  system,  the  general  method  up  to  1846,  3. 
elective  system,  3. 

development  of  sentiment  in  favor  of,  4,  6. 
first  trials  of,  4. 
the  question  of  elective  or  appointive  judiciary  in  Wisconsin 

constitutional  conventions,  5. 
the  question  in  Iowa,  5. 
argument  against  elective  system,  6. 
illustrations  of  such  argument,  7. 
freedom  from  frequent  changes  in  Wisconsin,  7. 
governor's  appointive  power  in  Wisconsin,  8. 
frequent  use  of  such  power,  8. 
effect  of  holding  judicial  elections  at  different  time  from  that 

of  general  elections,  9. 
Judge  Stow's  opposition  to  elective  principle,  12. 
decisions  of  the  court  and  popular  ideas,  179. 
successful  elimination  of  political  considerations,  385,  386. 

K. 
KERWIN,  JAMES  C,  election  of,  384. 

KEYES,  ELISHA  W.,  signer  of  non-partisan  call  putting  Judge 

Dixon  in  the  field,  132. 
review  of  Judge  Dixon's  campaign,  141,  142. 
friend  of  Judge  Ryan,  376. 
member  of  committee  to  erect  Dixon  and  Ryan  memorials, 

387. 

KEYES,  MRS.  ELIZA  M.,  390. 

KNOWLTOX,  JAMES  H.,  candidate  for  associate  justice,  39. 
counsel  for  Coles  Bashford,  99. 
article  in  the  "Home  League,"  170,  171. 
as  possible  candidate  to  succeed  Judge  Cole,  177. 

KNOWLTON,  WIRAM,  elected  judge  of  sixth  circuit,  13. 
biographical  sketch  of,  25. 


LA  DUE,  JOSHUA,  209. 
LAMB,  F.  J.,  132. 

LARRABEE,  CHAS.  H, 

Democratic  candidate  for  circuit  judge,  third  circuit,  12. 
election  of,  12. 


414  Index 

LARRABEE,  CHAS.  H.— Continued, 
biographical  sketch,  18,  19. 
candidate  for  nomination  for  chief  justice,  37. 
nomination  for  chief  justice,  38. 
how  received  by  the  Democrats,  39. 
resignation  as  circuit  judge,  40. 
LAWRENCE,  JUDGE,  Illinois  Supreme  Court,  7. 
LEGAL  TENDER  CASES,  242,  243. 

LEGISLATURE,  resolutions  of,  concerning  reversal   of  Wiscon- 
sin Supreme  Court's  decision  in  the  Booth  case  by  United 
States  Supreme  Court,  119. 
chapter  88,  laws  1861,  to  render  railroad  mortgages  value- 
less, 173-176. 
law  enabling  soldiers  to  vote  while  in  the  field,  207. 

LEWIS,   HENRY   M.,   personal   recollections   of   Judge   Whiton, 
59-66. 

signer  of  non-partisan  call  putting  Judge  Dixon  in  the  field, 
132. 
LIQUOR  LAW,  THE  "GRAHAM,"   373. 

LUSE,  LOUIS  K.,  candidate  for  justice  of  the  Supreme  Court,  384. 
LYNDE,  WILLIAM  PITT,  candidate  for  Justice  of  the  Supreme 

Court,  117. 
LYON,  WILLIAM  P.,  possible  candidate  to  succeed  Chief  Justice 
Dixon,  130. 

candidate  for  Chief  Justice  in  1868,  254. 

appointment  after  Judge  Paine's  death,  270. 

biographical  sketch,  271-273. 

campaign  against  David  Noggle,  273-276. 

speech  upon  presentation  of  battle  flags,  278,  279. 

his  work  upon  the  Supreme  bench,  280-283. 

election,  287. 

re-election,  369. 

re-election,  380. 

became  Chief  Justice,  381. 

declination  to  run  again,  381. 

M. 
MARKHAM,  C.  C,  396. 
MARSHALL,  ROUJET  DE  LISLE,  appointment  of,  382. 

election  for  unexpired  term,  and  for  full  term,  382. 

re-election  384. 


Index  415 

MARSHALL,  ROUJET  DE  LISLE— Continued. 

chairman  of  committee  to  erect  Dixon  and  Ryan  memorials, 

387. 
Dixon  monument  presentation  address,  390-392. 

McARTHUR,  ARTHUR,  Lieutenant  Governor,  107. 
at  convention  of  1863,  207. 

McCONNELL,  J.  E.,  387. 

McGOVERN  GOVERNOR  FRANCIS  E.,  390. 

MILLDAM  LAW,  attack  on,  28-30. 

MILLER,  ANDREW  G.,  justice  territorial  Supreme  Court,  2. 

MILLER,  GEORGE  P.,  396. 

MILLS,  JOSEPH  T.,  biographical  notice  of,  47. 

comments  upon  argument  of,  by  Mr.  Butterfield,  47,  48. 
candidate  for  Chief  Justice,  254. 

MORRIS,  W.  A.  P.,  132. 

N. 

NEGROES,  right  of,  to  vote,  246-249. 

NEWMAN,    ALFRED   W.,   election   as    justice   of   the    Supreme 
Court,  381. 
death,  382. 

NOGGLE,  DAVID,  candidate  for  justice  of  first  Supreme  Court,  12. 
possible  candidate  in  1863,  212. 

attack  upon  in  1865  in  campaign  for  circuit  judge,  273-277. 
resignation,  277. 

NOYES,  GEO.  H.,  390. 

O. 
OLIN,  JOHN  M.,  390. 

O'NEILL,  JAMES,  candidate  for  justice  of  Supreme  Court,  384. 

ORTON,  HARLOW  S.,  counsel  for  Governor  Barstow,  102. 
speech  upon  death  of  Judge  Paine,  269. 
nomination  for  justice  of  the  Supreme  Court,  284. 
election,  356. 

biographical  sketch,  357-364. 
re-election,  380. 
death,  382. 


416  Ind 


ex 


P. 

PAINE,  BYRON,  consultation  with  Sherman  M.  Booth  concern- 
ing arrest  of  Glover,  71. 
attitude  towards  slavery,  74. 
argument  against  fugitive  slave  law,  76. 
letter  from  Charles  Sumner,  77. 
letter  from  Wendell  Phillips,  77. 
possible  candidate  to  succeed  Justice  Smith,  116. 
nomination,  117. 
election,  121. 

biographical  sketches,  154-163. 
resignation,  231. 
reappointment,  238. 
counsel  for  Gillespie,  248. 
renomination  in  1868,  254. 
election,  259. 
death,  269. 

PAINE,  GEN.  JAMES  H.,  71,  74. 

PALMER,  HENRY  L.,  nomination  of,  for  Governor,  206. 

PHILLIPS,  WENDELL,  letter  to  Byron  Paine,  77. 

PINNEY,  S.  U.,  signer  of  non-partisan  call  putting  Judge  Dixon 
in  the  field,  132. 
in  case  of  In  Re  Oliver,  17  Wis.  *681,  194. 
in  Democratic  convention  of  1862,  206. 
address  upon  death  of  Judge  Paine,  270. 
candidate  for  justice  of  the  Supreme  Court,  381. 
election,  381. 
resignation,  383. 

POLITICAL  SITUATION  IN  1855,  THE,  85-87. 
in  1860,  164-165. 
in  1862-1863,  202-217. 
in  1871,  284. 

POTTER,  ROBERT  L.  D.,  340. 

PROUDFIT,  A.  E.,  390. 

PULLING,  JUDGE  DAVID  J.,   campaign  for  justice  of  the  Su- 
preme   court,    285-288. 


Index  4 1 7 

R. 
RAILROAD  CASES,  THE,  340-347. 

RANDALL,  ALEXANDER  W.,  counsel  for  Coles  Bashford,  99. 
message  to  the  legislature,  when  Governor,  suggesting  help 
for  farm  mortgagors,  173. 

RANDALL,  FRANCIS,  12. 

RANKIN,  JOSEPH,  370. 

REPUBLICAN  CONVENTION,  Feb.  29,  1860,  130-132. 

nomination  of  A.  Scott  Sloan,  132. 

resolutions  concerning  candidacy  of  Judge  .Lyon,  285. 
REPUBLICAN  UNION  CONVENTION,  1868,  254. 
ROBINSON,  C.  D.,  at  convention  of  1863,  207. 
RUGER,  WILLIAM,  candidate  for  justice  of  the  Supreme  Court, 

383,  385. 
RYAN,  EDWARD  GEORGE, 

in  favor  of  appointive  judiciary,  5. 

appearance  in  Booth  case,  76. 

counsel  for  Coles  Bashford,  99. 

speech  Democratic  convention  1859,  117. 

the  "Ryan  address,"  205-207. 

address  upon  death  of  Judge  Paine,  269. 

appointed  to  succeed  Chief  Justice  Dixon,  305. 

biographical  sketch  and  anecdotes,  305-338. 

notable  opinions,  339-353. 

attitude  towards  colleagues,  353-354. 

re-election,  369. 

resolution  of  legislature,  granting  leave  of  absence,  377. 

death,  378. 

description  of  memorial  to,  389,  390. 

unveiling  of  memorial,  396-397. 

RYAN,  HUGH,  306. 

RYCRAFT,  JOHN,  trial  in  United  States  Court  for  violation  of 
fugitive  slave  law,  78. 

S. 
SANBORN,  JUDGE  A.  L.,  390. 
SANBORN,  A.  W.,  387. 
SANDERS,  H.  T.,  337. 

SCHURZ,  CARL,  support  of  Judge  Paine,  120. 
speech  in  Milwaukee,  March  23,  18r»9,  120. 


418  Index 

SCUDDER,   HENRY   T.,   candidate   for   justice   of   the   Supreme 
Court,  384. 

SHARPSTEIN,  J.  R.,  75. 

SIEBECKER,    ROBERT    G.,     elected    justice    of    the     Supreme 
Court,  383. 

SIMPSON,  P.  B.,  337. 

SLOAN,  A.  SCOTT,  possible  candidate  to  succeed  Chief  Justice 
Dixon,  130. 
nomination,  132. 
biographical  sketch,  132,  134. 

SLOAN,  I.  C,  132. 

SMITH,  A.  HYATT,  at  convention  of  1863,  207. 

SMITH,  ABRAM  D.,  12. 

candidate  for  associate  justice  of  Supreme  Court,  38. 

election,  40. 

biographical   sketch,  40-43. 

attitude  as  to  state  rights,  116. 

declination  to  again  be  a  candidate,  118. 

possible  candidate  against  Judge  Dixon,  130. 

SMITH,  GEO.  B.,  speech  Democratic  convention,  1852,  37. 

signer  of  non-partisan  call  putting  Judge  Dixon  in  the  field, 

132. 
speech  at  Democratic  convention,  1862,  206. 

SMITH,  WILLIAM  RUDOLPH,   Attorney   General,  biographical 
sketch,  99-101. 

SMITH,  WINFIELD,  United  States  court  commissioner,  70. 
address  upon  death  of  Judge  Paine,  269. 

SOLDIERS'  VOTE,  law  allowing,  207. 

SPENCE,  THOMAS  W.,  396. 

SPOONER,  WYMAN,  173. 

STAMP  ACT  OF  1862,  243,  244. 

STEVENS,  B.  J.,  132. 

STOW,    ALEXANDER,     independent    candidate     circuit    judge, 
fourth  circuit,  12. 
election  of,  12. 


Index  419 

STOW,  ALEXANDER— Continued. 

opposition  to  principle  of  elective  judiciary,  12. 
biographical  sketch,  19-23. 

STRONG,  MARSHALL  M.,  candidate  for  associate  justice,  39. 

STRONG,  MOSES  M.,  independent  candidate  circuit  judge,  fifth 
circuit,  12. 
in  Democratic  judicial  convention,  209. 

SUMNER,  CHARLES,  letter  to  Byron  Paine,  77. 

SUPREME  COURT  OF  WISCONSIN, 

the  first,  12. 

litigation  in  1850,  27. 

test  of  milldam  law,  28-30. 

other  important  early  cases,  30,  31. 

creation  of  separate  Supreme  Court,  32. 

struggle  for  control  of  new  tribunal,  32. 

terms  of  justices,  40. 

clash  with  Federal  Courts  on  fugitive  slave  law,  79,  80. 

important  cases  during  Judge  Crawford's  term,  82-84. 

ignoring  of  United  States  Supreme  Court's  decision,  revers- 
ing decision  in  Booth  case,  128,  129. 

justices'  salaries,  250,  251. 

constitutional  amendment,  increasing  number  of  judges  and 
terms,  356. 

constitutional  amendment,  increasing  terms,  380. 

constitutional  amendment,  abolishing  office  of  Chief  Justice, 
380. 

constitutional  amendment,  increasing  number  of  judges  to 
seven,  383. 


TALLMADGE,  J.  J.,  at  convention  of  1863,  207. 

TANEY,  ROGER  B.,  Chief  Justice  United  States  Supreme  Court, 
excerpt  from  opinion  in  Booth  case,  81. 

TARBLE  CASE,  THE  (In  re  Tarble,  25  Wis.  390),  260-268. 
TAXATION  OF  RAILROADS,  218,  230. 

TAYLOR,  DAVID, 

possible  candidate  for  justice  of  the  Supreme  Court,  ISO,  212. 

election,  356. 

biographical  sketch,  3C4-368. 


420  Index 

TAYLOR,  DAVID— Continued, 
re-election,  380. 
death,  381. 

TENNEY,  D.  K.,  132. 

THOMSON,  A.  M.,  chairman  second  convention  of  Farm  Mort- 
gagors, 171. 

TIMLIN,  WILLIAM  H.,  election  of,  384. 

TRIPP,  WILLIAM  H.,  274. 

U. 

UPHAM,  D.  A.  J.,  speech  Democratic  convention,  1852,  37. 
on  stage  trip,  52. 

UPHAM,  H.  A.  J.,  397. 

V. 
VAN  DYKE,  GEORGE  D.,  396. 

VILAS,  MRS.  ANNA  M.,  390. 

VILAS,  COLONEL  WILLIAM  F.,  305. 

VINJE,  AAD  J.,  appointment  of,  385. 

VOGEL,  FRED,  396. 

W. 

WAKELY,  E.,  209. 

WALDO,  O.  H.,  212. 

WALKER,  GEO.  H.,  at  convention  of  1863,  207. 

WATKINS,  CHAS.  K.,  52. 

WATROUS,  COL.  J.  A.,  362. 

WEBB,    CHARLES    M.,   candidate    for   justice    of    the    Supreme 
Court,  381. 

WETHERBY,   LUCIEN  P.,  252. 

WHEELER,  E.,  337. 

WHITON,  EDWARD  V.,  Whig  nominee  for  circuit  judge,  12. 
election  of,  12. 
biographical  sketch,  13-16. 


Index  42 1 

WHITON,  EDWARD  V.— Continued, 
nomination  for  chief  justice,  39. 
election,  40. 
re-election,  115. 
death,  122. 

WINANS,  JOHN,  274. 

WINKLER,  GEN.  FRED  C,  member  of  committee  to  erect  Dixon 
and  Ryan  memorials,  387. 
Ryan  monument  presentation  address,  397-398. 

WINSLOW,  HORATIO  GATES,  203. 

WINSLOW,   JOHN   B.,   appointment   of,   381. 
first  election,  382. 
re-election,  382. 
Dixon  memorial  dedicatory  address,  393-396. 

WISCONSIN  TERRITORY, 
formation  of,  1. 

as  part  of  Northwest  territory,  1. 

territorial  Supreme  Court  and  other  very  early  courts,  1. 
appointment  of  additional  federal  judge,  1. 
separate  territorial  Supreme  Court,  2. 

WITTIG,  J.  G.  M.,  candidate  for  justice  of  the  Supreme  Court, 
383. 


